Citation Nr: 1334966 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-36 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a lumbosacral spine disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for radiculopathy. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Neilson, Counsel REMAND The Veteran had active military service from April 4 to December 11, 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The instant matters have twice previously been before the Board, when they were remanded for further development. Most recently, they were remanded in April 2013 for the agency of original jurisdiction (AOJ) to ensure compliance with the terms of the Board's March 2012 remand. Also remanded by the Board at that time was the issue of entitlement to service connection for fibromyalgia. A review of the record shows that by way of a rating action dated in May 2013, the Veteran was awarded service connection for fibromyalgia, evaluated as 40 percent disabling, effective from July 23, 2008. To date, it does not appear that the Veteran has disagreed with any aspect of the May 2013 decision. Thus, any issues regarding the award of service connection for fibromyalgia are not currently before the Board. Regarding the Veteran's other remanded claims, the Board noted that in claiming service connection for radiculopathy and lumbosacral and cervical spine disabilities, the Veteran stated that none of his symptoms existed until after he had dislocated his shoulder for the third time in February 2007 and asserted his belief that "these additional disease and/or disorder[s are] a result of recurrent right shoulder dislocation." The Board pointed out that despite medical evidence addressing the question of aggravation, none of the opinions obtained on remand discussed the likelihood that the Veteran's service-connected right shoulder disability had made chronically worse the Veteran's low back or cervical spine disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (providing that a disability may be service connected on a secondary basis due to causation and/or aggravation of disability). Upon remand from the Board, the AOJ sought to undertake the requested development, to include obtaining a an opinion regarding the likelihood that the Veteran's service-connected recurrent right shoulder dislocation has caused or made chronically worse the Veteran's degenerative disc disease of the lumbosacral and/or cervical spine. Despite the AOJ's specific request in this regard, the VA examiner failed to provide the necessary opinions relevant to the issue of whether the Veteran may be entitled to service connection on a secondary basis. Accordingly, another remand is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one); Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). Further, given that the Veteran is now service connected for fibromyalgia, as part of the opinion to be obtained on remand, the clinician should consider whether the Veteran's fibromyalgia has caused or made chronically worse the Veteran's degenerative disc disease of the lumbosacral and/or cervical spine. As to the Veteran's neurological complaints, the examiner related those symptoms to the Veteran lumbar and cervical spine degenerative disc disease and stated that there was no evidence that the Veteran's shoulder dislocation had caused or made worse his neuropathy/radiculopathy. Because the examiner attributed the Veteran's neurological complaints to his cervical and lumbar spine disabilities, the claims of service connection for which are being remanded, the issue of service connection for radiculopathy must also be remanded as it is intertwined with the other remanded issues. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ should arrange for a VA clinician with the appropriate expertise to review the Veteran's claims folder and provide opinions as to (1) whether it is at least as likely as not the Veteran's service-connected recurrent right shoulder dislocation has caused or made chronically worse the Veteran's degenerative disc disease of the lumbosacral spine; (2) whether it is at least as likely as not the Veteran's service-connected recurrent right shoulder dislocation has caused or made chronically worse the Veteran's degenerative disc disease of the cervical spine; (3) whether it is at least as likely as not the Veteran's service-connected fibromyalgia has caused or made chronically worse the Veteran's degenerative disc disease of the lumbosacral spine; and (4) whether it is at least as likely as not the Veteran's service-connected fibromyalgia has caused or made chronically worse the Veteran's degenerative disc disease of the cervical spine. The clinician's opinions should be based upon both the medical evidence of record and consideration of the Veteran's documented history and assertions through review of the claims file. Regardless of whether the clinician's opinions are favorable or negative, the clinician must provide support for his/her opinions that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his/her opinion. Medical reasons for accepting or rejecting the Veteran's assertion that his disc disease is attributable to his right shoulder dislocation because his symptomatology did not manifest until after his 2007 dislocation should be set forth. (If it is determined that an examination is required to address any question, one should be scheduled.) 2. The AOJ must ensure that the medical opinion report complies with this remand and that all four requested opinions are provided and that the basis for all opinions is adequately explained. If the report is insufficient, it must be returned to the reviewing clinician for necessary corrective action, as appropriate. 3. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issues remaining on appeal. If any benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).