Citation Nr: 1543387 Decision Date: 10/08/15 Archive Date: 10/13/15 DOCKET NO. 07-28 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for disorders of the right shoulder and cervical spine, to include as secondary to service-connected temporomandibular joint syndrome (TMJ). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from August 2000 to November 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction was subsequently transferred to the RO in Baltimore, Maryland. The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). The Veteran presented testimony at a personal hearing before the undersigned Veterans Law Judge in June 2010. A transcript is of record. In September 2010, the Board remanded the claim for additional development. In January 2014, the Board denied the claim for service connection for a right shoulder disorder, to include as secondary to service-connected TMJ. The Veteran appealed the Board's January 2014 decision to the United States Court of Appeals for Veterans Claims (Court) and in a July 2014 Joint Motion for Partial Remand (Joint Motion), the parties requested that the Court partially vacate and remand the Board's decision to the extent that it did not consider the nature of the Veteran's condition (to include a claim for service connection for a cervical spine disability) and whether VA should have developed and adjudicated the claim more broadly. In a July 2014 Order, the Court granted the Joint Motion. The Board issued another decision in February 2015, which referred the issue of entitlement to service connection for a cervical spine disability and denied the claim for service connection for right shoulder disorder, to include as secondary to service-connected TMJ, on the basis that the Veteran did not have a current right shoulder disorder. The Veteran appealed the Board's February 2015 decision to the Court. In a July 2015 Joint Motion for Remand (Joint Motion), the parties requested that the Court vacate and remand the Board's decision for the reasons to be discussed more fully below. Given the July 2015 Joint Motion, the issue has been recharacterized as reflected on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In its February 2015 decision, the Board agreed that a claim for service connection for a cervical spine disability should be addressed, but determined that since this particular claim was not set forth by the Veteran, had not been adjudicated and denied by the RO, and had not been appealed to the Board, initial adjudication of such a claim should begin with the AOJ. The July 2015 Joint Motion determined that the Board erred when it referred a claim for service connection for a cervical spine disability rather than remand it as a component of the claim for service connection for right shoulder disorder. Given the findings and determinations made in the July 2015 Joint Motion, the Board finds that it must remand this claim to the AOJ. The Board again notes that the issue has been recharacterized as reflected on the title page. The Board has found notations in the service treatment records dated in September 2003 that reference complaints of neck pain. For the sake of completeness, the Board finds that an appropriate VA examination should be scheduled on remand. The Veteran is hereby notified that it is her responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2015). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination. The entire electronic claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all clinical findings reported in detail. The examiner should identify all disorders affecting the Veteran's cervical spine. The examiner should provide an opinion as to (a) whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any cervical spine disorder, to include the previously differentially diagnosed cervical degenerative disc disease, C3-4 through C5-06; cervical radiculitis; cervical myofascial pain; and possible cervical facet arthropathy, had its onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner must specifically address: * a September 2003 in-service dental record, which shows complaint of right neck pain with a notation that pain was possibly related to length of symptoms and stress; * a September 2003 in-service emergency care and treatment record, which noted the Veteran presented to the emergency room with mouth prophylaxis located in the right region of the face and neck, that the Veteran reported she was having difficulty with range of motion in her neck following surgery the day prior, and which assessed muscle spasm; * and an October 2009 post-service private treatment record, which documents that the Veteran reported her neck pain had begun without any true inciting event. (b) If the answer to (a) is no, is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected TMJ caused any cervical spine disorder? (c) If the answer to (a) and (b) are no, is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected TMJ aggravated (i.e., caused an increase in severity of) any cervical spine disorder? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of cervical spine impairment (i.e., a baseline) before the onset of the aggravation. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 2. Readjudicate the claim, which has been recharacterized as entitlement to service connection for disorders of the right shoulder and cervical spine, to include as secondary to service-connected TMJ. If the benefit sought on appeal remains denied, furnish the Veteran and her representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. The appellant 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 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). _________________________________________________ DENNIS F. CHIAPPETTA 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) (2015).