Citation Nr: 1530268 Decision Date: 07/15/15 Archive Date: 07/21/15 DOCKET NO. 11-00 012A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected osteoarthritis of the lumbar spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1958 to December 1967. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction was subsequently transferred to the RO in Roanoke, Virginia. In January 2012, the Veteran testified at a hearing held at the RO before a Veterans Law Judge who is no longer employed at the Board. A transcript of that hearing is of record. In December 2014, the Veteran was notified that he could attend another hearing conducted by a different Veterans Law Judge who would decide his appeal. See 38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2014) (requiring that the Veterans Law Judge who conducts a hearing on an appealed issue must participate in any decision made on that appeal). The Veteran was informed that if he did not respond to the letter within 30 days, the Board would assume that he did not want another hearing and proceed with the adjudication of the appeal. The Veteran did not respond to the December 2014 letter. However, he did submit additional evidence in support of his claim in February 2015. Thus, the Board has assumed that the Veteran does not want another hearing and will proceed with the adjudication of the appeal. In October 2012, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the case. A review of the documents in the electronic files reveals additional statements, VA treatment notes, private treatment notes, and worker's compensation documents relevant to the claim on appeal. The RO did not consider this evidence; however, in June 2015, the Veteran's representative submitted a waiver of initial agency of original jurisdiction (AOJ) consideration of the additional evidence. See 38 C.F.R. § 20.1304 (2014). The remaining evidence is irrelevant or duplicative of the evidence in the claims file with respect to the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that a remand is necessary to obtain an additional VA medical opinion and to obtain any available Social Security Administration (SSA) records. The Veteran contends that his osteoarthritis of the cervical spine is the result of a neck injury sustained in a 1959 training exercise at Fort Campbell, Kentucky, during service. He stated that, during the exercise, he was unable to free himself from a parachute that failed to fully open, and he injured his neck due to the impact of the landing. See, e.g., July 2008 statement, March 2009 VA treatment note, and January 2012 hearing transcript. Alternatively, he claims that his neck injury may be the result of a fall when a crane hoist knocked him from a two story stack of steel being loaded to build a bridge during his service in France. See April 2010 statement and January 2012 hearing transcript. He also asserts that his cervical spine disability may have been caused or permanently aggravated by his service-connected lumbar spine disability. The Veteran has been afforded two VA spine examinations in connection with his claim. In a February 2009 VA spine examination report, the examiner noted that the Veteran was treated for a neck strain on active duty. He opined that it was at least as likely as not that the Veteran's current osteoarthritis of the cervical spine developed on active duty. However, in a February 2009 VA addendum opinion, the examiner opined that the Veteran's osteoarthritis of the cervical spine was not caused by or a result of his military service. He noted that there was no documented history of a neck condition while the Veteran was on active duty. He reported that the Veteran's current neck pain was a result of a 1993 neck injury and resultant pain from a spinal tap. In a January 2013 VA spine examination report, the examiner opined that it was less likely than not that the cervical stenosis with multilevel degenerative disc and joint disease of the cervical spine is etiologically related to, or has been permanently aggravated by, the service-connected osteoarthritis of the lumbar spine. The examiner noted that the Veteran was service-connected for osteoarthritis of the lumbar spine following a history of a back injury during service; however, he indicated that, there was no documented history of a neck injury during service. He related that there was one documented complaint of neck and back pain with no documented history of recurrent, persistent, or repetitive neck complaints, diagnoses, or treatment. Rather, he reported that, the Veteran's earliest mention of neck pain was documented in a September 2007 VA treatment note that stated that the Veteran was evaluated elsewhere for neck pain in 1993, and that noted that the Veteran reported a history of neck pain that exceeded 15 years. The examiner stated: In the absence of a history of trauma to the neck, it is most likely that [the Veteran's] cervical stenosis is due to the development of degenerative disc and joint disease (arthritis) over years of repetitive and routine biomechanical stresses on the cervical spine. There is no plausible biological mechanism by which [the Veteran's] lumbar spine condition would have increased these biomechanical stresses in such a way as to cause or aggravate [the Veteran's] cervical spine condition. Though the cervical spine is anatomically connected to the lumbar spine, the lumbar spine condition is separate and distinct from the cervical spine condition. On review, it is unclear if the examiners considered the complete history of the development of the Veteran's osteoarthritis of the cervical spine. In fact, neither examiner addressed the Veteran's contention that his current neck disorder may have been caused by a two story fall during his service in France nor did they address the private medical evidence of record that suggested that suggested that the Veteran had long-standing, chronic degenerative changes in his cervical spine that were aggravated during a 1993 work injury. See December 1993 and January 1994 private treatment notes. Finally, there may be additional SSA medical records that are pertinent to the claim. In the October 2012 remand, the Board directed the RO/Appeals Management Center (AMC) to determine if the Veteran filed a claim for SSA benefits. If a determination was made that the Veteran did file a claim, then the RO was directed to obtain a copy of the decision to grant or deny SSA benefits, and the records upon which the decision was based, and to associate them with the claims file. The RO was requested to document the claims file if the records were unavailable. A review of the record shows that the Veteran was awarded SSA disability benefits in October 1997. In October 2012, the AMC sent the Veteran a letter requesting that he advise VA whether he filed a claim for SSA benefits. There is no indication that any further development was taken. The Court has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, substantial compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. Therefore, in light of Stegall, supra, the appeal is once again remanded to the AOJ to ensure compliance with the Board's previous October 2012 remand directives. Accordingly, the case is REMANDED for the following action: 1. Obtain the SSA records pertinent to the Veteran's claim for disability benefits, including a copy of any decision, to include an October 1997 decision, and copies of the medical records relied upon concerning that claim. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the appropriate VA Medical Center and obtain and associate with the paper or virtual claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 4. After obtaining any identified and outstanding records, refer the Veteran's claims file to the January 2013 VA examiner, or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's osteoarthritis of the cervical spine. An examination of the Veteran should be performed if deemed necessary by the individual providing the opinion. A full explanation of all opinions must be provided. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's osteoarthritis of the cervical spine manifested in service or within one year thereafter or is otherwise related to his military service. In providing this opinion, the examiner should consider the information below and its medical significance, if any, in providing the clarifying opinion: (1) the Veteran's statements and hearing testimony concerning the 1959 parachute accident; (2) the Veteran's statements and hearing testimony concerning a two story fall from a stack of steel after being struck by a crane hoist during service in France; (3) the December 1993 private treatment note, in which the physician indicated that a magnetic resonance imaging (MRI) study of the cervical spine "certainly suggests an old chronic disc situation there at [C]6-7" that he was "sure ha[d] been there for a long time, but finally ha[d] gotten things irritated"; (4) the January 1994 private treatment note, in which the neurosurgeon indicated that a MRI showed a herniated disc at C6-7 and "milder changes of degenerative disease at several other levels as well"; (5) the February 2009 VA spine examination report, in which the examiner opined that it was at least as likely as not that the Veteran's current osteoarthritis of the cervical spine developed on active duty; (6) the February 2009 VA examiner's addendum opinion, in which he noted that there was no documented history of a neck condition during active duty and his opinion that the Veteran's neck pain was a result of a 1993 neck injury and resultant pain from a spinal tap; and (7) the January 2013 VA spine examination report. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 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). _________________________________________________ K. MILLIKAN 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).