Citation Nr: 1709024 Decision Date: 03/23/17 Archive Date: 04/07/17 DOCKET NO. 09-00 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.Z., Counsel INTRODUCTION The Veteran served had active service from April 1968 to April 1970. These matters come before the Board of Veterans' Appeals (Board) from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Atlanta, Georgia. Jurisdiction of the June 2009 rating decision was subsequently transferred to the RO in Montgomery, Alabama. This case initially came before the Board in November 2012 when multiple issues were dismissed and entitlement to service connection for a cervical spine disorder, entitlement to service connection for a lumbar spine disorder and entitlement to service connection for residuals of prostate cancer were remanded for additional evidentiary development. These remanded issues were again before the Board in November 2015, when the Board denied entitlement to service connection for residuals of prostate cancer and remanded the remaining two issues for further evidentiary development and consideration. The remaining issues were again remanded in October 2016, and they now return for appellate review. The Veteran testified before the undersigned in June 2012. A transcript of this hearing has been associated with the claims folder. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2016). The Veteran contends that his cervical and lumbar disabilities preexisted service and were aggravated by service. Per the Board's October 2016 remand, an addendum opinion concerning the Veteran's cervical and lumbar spine disabilities was obtained in November 2016. However, the Board finds that such opinion is insufficient to render an opinion on the Veteran's claims. In this regard, the clinician opined that the Veteran's cervical and lumbar spine disabilities were not aggravated in service and "he was able to go through basic training and had no military injury or condition to permanently worsen the condition during active duty." The clinician also added that "a possible fractured right mandible did not likely result in a permanent aggravation of his pre-existing neck pain." However, the examiner failed to consider the Veteran's lay statements of back and neck pain continuing after a pre-service automobile accident which is supported in statements submitted by his spouse and friends, a deficiency which was noted by the Board in a prior opinion as well. The Veteran has also stated that, due to his post to the Military Police, he was involved in numerous fights, beaten beyond recognition, and slammed against the ground and walls, and was in two riots. See, e.g., November 2006 statement and Hearing Transcript. The Board notes that the Veteran is service-connected for posttraumatic stress disorder on account of physical altercations sustained during his work as a military police officer, and such reports are deemed credible. Accordingly, the Board finds that the clinician's statement that the Veteran "had no military injury or condition to permanently worsen the condition during active duty," is incorrect, as such does not consider the physical effects of the altercations sustained by the Veteran. Furthermore, the examiner did not offer a rationale for her finding that the Veteran's possible fractured right mandible did not likely result in a permanent aggravation of his pre-existing neck pain. Thus, given the deficiencies in the above examination, in order to satisfy VA's duty to assist, the Board finds that a remand is warranted in order to afford the Veteran an additional VA examination and/or opinion to adequate address his claims. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). Accordingly, the case is REMANDED for the following action: 1. Request a VA addendum opinion from an examiner other than the examiners who conducted the June 2013 VA examinations and provided the April 2016 and October 2016 addendum opinions. Provide a copy of this remand and the claims file to the examiner for review. If deemed necessary by the examiner in order to provide the requested opinion, the Veteran should be scheduled for an examination. The examiner is asked to address the following questions: a. With respect to each lumbar and/or cervical disability diagnosed during the pendency of the claim or proximate to the claim, is it clear and unmistakable (obvious, manifest, or undebatable) that the identified disability existed prior to active military service? And if so, is it also clear and unmistakable (obvious, manifest, or undebatable) that the identified disability was not aggravated during or by the Veteran's active military service, that is, above and beyond the condition's natural progression? Evidence relied upon in rendering the opinions must be specified. In rendering an opinion, the examiner should consider the Veteran's lay statements of back and neck pain continuing after a pre-service automobile accident, which is supported in statements submitted by his spouse and friends, and accept as fact that the Veteran was involved in multiple physical altercations while serving as a military police officer. b. In the event that it is not clear and unmistakable (obvious, manifest, or undebatable) that any of the identified disabilities referenced in (a) above either preexisted service or, if preexisting, were not aggravated in service, is it is at least as likely as not (50 percent probability or more) that any identified disability diagnosed during the pendency of the claim, or proximate to the claim, was incurred in, was caused by, or is otherwise related to, the Veteran's active service, to include consideration of the March 1969 service treatment record which indicated a possible fractured right mandible. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. The rationale for each opinion expressed must also be provided. 2. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ L.M. BARNARD 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) (2016).