Citation Nr: 1641619 Decision Date: 10/27/16 Archive Date: 11/08/16 DOCKET NO. 09-34 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for residuals of surgery with difficulty swallowing and defective speech, as secondary to service-connected status post fusion C5 with spondylosis C5-6. 2. Entitlement to service connection for erosions of the anastomotic site/nausea (claimed as gastrointestinal condition), as secondary to the service-connected status post fusion C5 with spondylosis C5-6. 3. Entitlement to service connection for fibromyalgia. 4. Entitlement to a rating in excess of 20 percent for status post fusion C5 with spondylosis C5-6. 5. Entitlement to an initial rating in excess of 30 percent for anxiety disorder. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from August 1981 to December 1981 and from March 1986 to March 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. During the course of the Veteran's appeal, the RO assigned a 20 percent rating for status post fusion C5 with spondylosis C5-6. As higher ratings for the disability are available, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). On his VA Form 9, Appeal to the Board, the Veteran requested a Board hearing; however, he subsequently withdrew his request in a February 2016 written correspondence. The Board will proceed in this matter accordingly. The Board also observes that the Veteran has filed a VA Form 9, Appeal to the Board, with regard to the matters of entitlement to increased ratings for tension headaches, cervical radiculopathy, and mild carpal tunnel syndrome, left, to include cervical radiculopathy of the left upper extremity. He has also requested a hearing on these issues. These matters have not been certified to the Board. Therefore, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. This appeal was processed using the Virtual VA and VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action, on his part, is required. REMAND Upon review of the claims file, the Board believes that additional development with respect to the claims on appeal is warranted. Regarding the issues of entitlement to service connection for fibromyalgia and the claim for increased initial rating for anxiety disorder, the appeal must be remanded for the issuance of a Statement of the Case. When a notice of disagreement has been filed the AOJ must issue a Statement of the Case. Manlincon v. West, 12 Vet App 238, 240-41 (1999) (noting that the filing of a notice of disagreement initiates the appeal process and requires VA to issue a Statement of the Case). In a February 2013 rating decision, the RO granted service connection for anxiety disorder and assigned a 30 percent rating for the disorder, and denied service connection for fibromyalgia. In April 2013, the Veteran filed a notice of disagreement with respect to this decision. However, a Statement of the Case with respect to these issues is not of record. Such development must be accomplished on remand. With respect to the remaining claims for service connection, the law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran contends that he is entitled to service connection for disability manifested by difficulty swallowing and defective speech, as secondary to service-connected status post fusion C5 with spondylosis C5-6. He alleges that following his 2005 surgical spine fusion, in 2005, he experienced difficulties with speaking and swallowing that he did not have prior to the surgery. He has also described problems with chewing his food and a hoarse voice. A November 2005 note from the Veteran's private neurosurgeon indicates that they discussed the general risks of his cervical spine surgery, which included cerebrospinal fluid leak, hematoma formation, swallowing difficulties, hoarseness, esophageal injury, paralysis of the arms or legs, infection, stroke, and risks both foreseen and unforeseen. The Veteran underwent surgery in November 2005. On his one-month post-operative visit in December 2005, the Veteran reported some very mild swallowing difficulties, especially with large pills. The Veteran was afforded a VA examination in July 2009, at which time the examiner found subjective dysphagia and intermittent hoarseness with insufficient evidence to warrant an acute diagnosis. Problems associated with the diagnosis included difficulty swallowing and defective speech. The examiner reviewed the Veteran's records and opined that it is less likely than not that the claimed disability was related to cervical fusion surgery. In so finding, the examiner noted that the risk of complications noted by the neurosurgeon in his progress notes from November 2005 were general risks that could occur post-operative. He had surgery November 2005 with follow-up visits in February 2006 and June 2006 with improvement and no complications from the surgery. There were no abnormalities by ENT consultation to support any damage from previous neck surgery. Subsequent to this examination, the Veteran submitted a copy of a February 2011 VA swallow study, which revealed deficits. He was recommended for therapy to improve swallowing strength. Included in the therapy assessment is a notation that there was a metal plate in this throat with fusion of the C4 and C5 vertebrae. This plate was reportedly impeding his pharyngeoesophageal motility to where he was only able to swallow foods after excessive mastication, turning all foods into puree. In addition, an October 2010 VA examiner related the Veteran's difficulty swallowing pills to his dry mouth, which was a side effect of his medications. Given the findings of the October 2010 VA examiner and the February 2011 study and potential link to the Veteran's cervical spine disability, status post cervical fusion surgery, the Board believes that additional VA examination and opinion is warranted. With regard to the claimed gastrointestinal disability, the Board notes that the Veteran was afforded a VA examination in October 2010, at which time the examiner diagnosed erosions of the anastomotic site and nausea. He determined that the likely cause of the Veteran's nausea was related to the medications he took, all of which had a likely side effect of nausea, as well as potentially to his prior gastric bypass surgery. However, the examiner did not indicate whether it is at least as likely as not that the Veteran's medication for his service-connected disabilities plays a causal/aggravating role in any gastrointestinal disability. Accordingly, remand for additional examination and opinion is also warranted for this matter. Finally, with respect to the claim for increased rating for cervical spine disability, the United States Court of Appeals for Veterans Claims (CAVC) in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. §4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the CAVC's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. In this case, while the Veteran was afforded VA examinations with respect to his cervical spine disability in 2010 and 2014, testing in passive motion, weight-bearing, and nonweight-bearing situations were not conducted. In light of Correia, these VA examinations are insufficient. Given the foregoing, the Board finds that a more contemporaneous examination, with medical findings responsive to the applicable criteria for rating the disability under consideration, is warranted. While these matters are on remand, any additional treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. All outstanding records of VA treatment should be obtained and associated the claims file. 2. The AOJ should also take appropriate steps to send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal. If the Veteran identifies any other pertinent medical records that have not been obtained, the AOJ should undertake appropriate development to obtain copies of those records. 3. After the Veteran responds and all available records and/or responses from each contacted entity are associated with the claims file, the Veteran's claims file should be forwarded to an appropriate examiner for examination and opinion on the nature and etiology of the claimed speech and swallowing difficulties and anastomotic site/nausea (claimed as gastrointestinal condition). Speech/Swallowing- The examiner should clearly identify any speech/swallowing disorder(s). Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability was caused by or aggravated (permanently increased in severity beyond the natural progress of the condition) by a service-connected disability, to specifically include his status post fusion C5 with spondylosis C5-6 and any medication used to treat a service-connected disability. In providing the requested opinion, the examiner is asked to specifically consider and address the treatment records documenting complaint of difficulties with speaking and swallowing shortly after the surgical treatment, the October 2010 VA examination report, and the February 2011 VA swallow study findings. Gastrointestinal- The examiner should clearly identify any gastrointestinal disorder(s). Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability was caused by or aggravated (permanently increased in severity beyond the natural progress of the condition) by a service-connected disability, to specifically include his status post fusion C5 with spondylosis C5-6 and any medications used to treat his cervical spine disability, with particular attention to the examiner's findings on VA examination in October 2010. If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected disability to the extent possible. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 4. Then, the Veteran should be afforded a VA examination to determine the current severity of his cervical spine disability. All necessary tests should be conducted. In addition to all required findings, the examiner should provide findings as to the range of motion of the cervical spine, including flexion and extension. The examiner must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should identify all neurologic manifestations of the Veteran's cervical spine disability. If there is neurological impairment, the examiner should identify the nerve or nerves involved and determine the manifestations. In addition, the examiner should describe the frequency and duration of any incapacitating episodes due to the cervical spine disability, if applicable. The examiner should also comment on the Veteran's functional limitations due to his cervical spine disability, including the impact on his ability to work. The examiner must provide a complete rationale for all the findings and opinions. 5. The AOJ should also issue a Statement of the Case that addresses the issues of entitlement to service connection for fibromyalgia and entitlement to an increased rating for anxiety disorder. The Veteran should be informed that, in order to perfect an appeal as to these issues for review by the Board, he must file a timely an adequate Substantive Appeal following the issuance of the Statement of the Case. 6. After completing any additional notification or development deemed necessary, the Veteran's claims for service connection and for increased rating for cervical spine disability should be readjudicated. If the claims remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. The Veteran 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). _________________________________________________ T. MAINELLI 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).