Citation Nr: 1508935 Decision Date: 03/02/15 Archive Date: 03/17/15 DOCKET NO. 09-04 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for residuals of a neck injury. 2. Entitlement to service connection for residuals of a back injury. 3. Entitlement to service connection for residuals of an injury to the mouth and teeth. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from December 1964 to August 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. This case is now under the jurisdiction of the Atlanta, Georgia RO. When this case was previously before the Board in September 2012, it was decided in part and remanded in part for additional evidentiary development; it has since been returned to the Board for further appellate action. This appeal was processed using a physical file, Virtual VA, and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of all of these records. The issue of entitlement to service connection for headaches was raised in an April 2009 statement in the physical claims file; the issues of entitlement to service connection for diabetes, service connection for hypertension, and an increased rating for hearing loss was raised in an October 2014 statement in VBMS. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran contends that he is entitled to service connection for residuals of a neck injury, back injury, an injury to the mouth and teeth as due to two in-service falls down stairs, a car accident in February 1968, and a blow to the mouth. Service treatment records include the following: January 1965 treatment for continuous back pain; April 1965 treatment for back pain said to have started when the Veteran fell down some steps in December 1964; June 1965 treatment for recurrent low back pain; June 1966 treatment for a back injury after the Veteran experienced a second fall down a flight of stairs with findings of a mild abrasion on the thoracic spin and limited flexion and extension of the lumbar spine; a July 1968 separation examination medical history in which the Veteran complained of musculoskeletal back pain; July 1968 treatment after being punched in the chest with a diagnosis of rule out fracture; October 1968 and November 1968 records of treatment for chronic low back pain; and records of dental treatment, including a February 1968 record of dental treatment for a blow to teeth number 8 and 25. In response to the Board's September 2012 remand, the Veteran was afforded VA examinations in October 2012 in which the examiner opined that it was as likely as not that his current low back problem was not related to service. The VA examiner also opined that it was as likely as not that his current neck problem was not related to service. Finally, the VA examiner stated that the claims file showed that the Veteran was not service-connected for teeth dental injury and thus the treatment he received after his accident must have been considered definitive by the military; since the Veteran had no service connection for the teeth listed, it was less likely then not (less than 50/50 probability) that the loss of teeth was service-connected resulting from trauma to the mouth. The VA examiner's opinions in regards to etiology of the claimed residuals of neck and back injuries are inadequate for adjudication purposes because they do not address the correct legal standard; i.e., whether it is at least as likely as not the claimed disabilities are related to service. The Board notes that the Veteran's representative also questioned the adequacy of the VA opinions in a January 2015 brief associated with VBMS. Moreover, the Board requested in the September 2012 remand that if arthritis of the neck, back, or jaw was diagnosed, the examiner provide an opinion as to whether the arthritis existed within one year after discharge from service in August 1968. The October 2012 VA examiner noted that degenerative joint disease (DJD) of the lumbosacral spine was diagnosed in 2002 and DJD of the lower cervical spine was diagnosed in 1999 but did not opine as to whether the DJD was also present within one year after discharge from service in August 1968. Finally, the VA examiner's opinion/rationale in regards to the etiology of the claimed residuals of an injury to the mouth and teeth was not responsive to the Board's remand directives requiring, for each diagnosed disorder of the mouth or teeth, an opinion as to whether the disorder was a result of in-service trauma to the mouth or teeth. That is, the Board is not inquiring as to whether the Veteran's dental injury/loss of teeth was previously service-connected. Therefore, the Board has determined that further development of the record is warranted before the Board decides the claim. Accordingly, this case is REMANDED for the following actions: 1. The physical and electronic claims files should be provided to the VA examiner who conducted the October 2012 VA examination. The examiner should be requested to review the evidence of record and provide an addendum in which he responds to the following questions: (a) whether it is at least as likely as not that the Veteran's neck disability originated during active service or is otherwise etiologically related to the Veteran's active service. (b) whether it is at least as likely as not that the Veteran's back disability originated during active service or is otherwise etiologically related to the Veteran's active service. (c) Was the diagnosed DJD of the lumbosacral spine present within one year after discharge from service in August 1968? (d) Was the diagnosed DJD of the lower cervical spine present within one year after discharge from service in August 1968? (e) whether it is at least as likely as not that any disability of the mouth or teeth present during the pendency of this claim, from September 2003, originated during active service or is otherwise etiologically related to the Veteran's active service. Review of the entire file is required; however, attention is invited to the service treatment records demonstrating the following: January 1965 treatment for continuous back pain; April 1965 treatment for back pain said to have started when the Veteran fell down some steps in December 1964; June 1965 treatment for recurrent low back pain; June 1966 treatment for a back injury after the Veteran experienced a second fall down a flight of stairs with findings of a mild abrasion on the thoracic spin and limited flexion and extension of the lumbar spine; a July 1968 separation examination medical history in which the Veteran complained of musculoskeletal back pain; July 1968 treatment after being punched in the chest with a diagnosis of rule out fracture; October 1968 and November 1968 records of treatment for chronic low back pain; and records of dental treatment, including a February 1968 record of dental treatment for a blow to teeth number 8 and 25. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the October 2012 examiner is unavailable, the physical and electronic claim files should be reviewed by another examiner with appropriate expertise who should be requested to provide the required opinions with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinions. 2. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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 2014). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).