Citation Nr: 1338088 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 07-21 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for cervical spine spondylosis. 2. Entitlement to service connection for headaches, claimed as secondary to service-connected scar, shrapnel wound, back of neck. REPRESENTATION Appellant represented by: Dennis Peterson, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1972. This case is before the Board of Veterans' Appeals (Board) on appeal from adverse action by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This case was previously before the Board in June 2009, November 2009 and May 2011. In June 2009, the Board remanded this case to comply with the Veteran's outstanding hearing request. He subsequently provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2009. A transcript of this hearing has been associated with the Veteran's VA claims folder. In November 2009, the Board, in pertinent part, denied the Veteran's claim for service connection for a neck disability. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). By a November 2010 Order, the Court, pursuant to joint motion for partial remand (JMR), vacated that portion of the November 2009 Board decision that denied the Veteran's claim for service connection for a neck disability, and remanded that claim to the Board for compliance with the instructions of the JMR. In May 2011, the Board promulgated a decision which again denied service connection for cervical spine spondylosis. The Veteran appealed that decision to the Court. By a July 2012 Memorandum Decision, the Court set aside the Board's May 2011 decision, and remanded the case for readjudication. The Court also declared the Board should have included for consideration the issue of whether the Veteran's claimed headaches were secondary to service-connected scar, shrapnel wound, back of neck. Accordingly, the Board has added this to the issues on appeal. Judgment was issued by the Court in August 2012, and Mandate in October 2012. For the reasons detailed below, the appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The record reflects the Veteran was accorded VA medical examinations regarding this case in March 2008 and October 2009. However, the July 2012 Memorandum Decision concluded that these examinations were inadequate for rating purposes, and stated that on remand the Board may not consider these examination reports. The Court stated that if the Board determined that additional medical evidence was needed prior to readjudication, it must obtain an adequate VA medical examination. The Court has previously held that once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007) Accordingly, the case is REMANDED for the following action: 1. The RO should provide notice to the Veteran of the information and evidence necessary to substantiate a claim of service connection for a recurring headache disability, to include when claimed to be secondary to an already service connected disorder. 2. The RO should obtain the names and addresses of all medical care providers who have treated the Veteran for cervical spine spondylosis and headaches since July 2008. After securing any necessary release, the RO should obtain those records not on file. 3. The RO should notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of in-service and post-service neck symptomatology, to include headaches. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to determine the nature and etiology of his cervical spine spondylosis, and recurrent headaches. The claims folder should be made available to the examiner for review before the examination. Following evaluation of the Veteran, the examiner is requested to express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current cervical spine spondylosis and/or headaches were incurred in or otherwise the result of his active service. In making this determination, the examiner should be aware that the Board has previously determined that the Veteran did sustain a neck injury while on active duty, as exemplified, in part, by his service-connected shrapnel wound scar of the neck. Likewise, the examiner's opinion should reflect consideration of the lay statements regarding the Veteran's symptom history. If the examiner determines that the Veteran's cervical spine spondylosis and/or headaches are not directly related to active service, then the examiner should opine whether it is at least as likely as not that these disabilities were caused or aggravated by the service-connected shrapnel wound scar of the neck. By aggravation, the Board means a permanent increase in severity that is beyond natural progression. A complete rationale for any opinion expressed must be provided. If the examiner is unable to offer an opinion without resort to speculation, it is essential that the examiner provide a rationale for that conclusion, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. After completing any additional development deemed necessary, the RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his attorney should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained since the RO last adjudicated this case, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2012).