Citation Nr: 1751637 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-13 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received for a claim of service connection for a low back disorder. 2. Entitlement to service connection for a cervical disorder. 3. Entitlement to service connection for a bilateral hip disorder. 4. Entitlement to service connection for a bilateral leg disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Sopko, Counsel INTRODUCTION The Veteran had active service from June 1970 to May 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). VA denied five service connection claims in this rating decision. One of the five claims - service connections for headaches - was appealed via a Notice of Disagreement received in October 2011, but it was not perfected in a VA Form 9 received in April 2013. Therefore, this claim is not on appeal. The Board decides Issues 1-2 below. The Board REMANDS Issues 3-4 to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran did not submit a NOD to appeal VA's denial of service connection for a low back disorder. 2. Service caused the Veteran's cervical disorder. CONCLUSIONS OF LAW 1. The criteria for timely filing a NOD to the July 2011 rating decision denying service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 7105, 7108 (West 2014); 38 C.F.R. §§ 20.202, 20.302(b) (2017). 2. The criteria for service connection for a cervical disorder have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Low Back Disorder The Board must have jurisdiction to review the denial of a claim. To have jurisdiction, the Veteran must submit a written Notice of Disagreement (NOD) within one year of notification of VA's denial of the claim to initiate an appeal. VA denied the Veteran's claim to reopen his low back claim in July 2011. VA designated this issue as Issue 5 in its five-issue rating decision. The Veteran did not appeal this denial. Indeed, the Veteran submitted two NODs for this rating decision, which VA received in October 2011 and January 2012. The first NOD expressly addressed the Veteran's disagreement with Issues 1-4 of the rating decision, excluding Issue 5. The Veteran annotated the second NOD, which was a copy of the first NOD. He wrote in capital letters: "*PLEASE NOTE ATTACHED RATING DECISION ITEMS #1 THRU 4. I AM APPEALING ALL 1/2/12." Again, he excluded Issue 5. It is clear from these NODs that the Veteran elected not to appeal this issue. Accordingly, the Board must dismiss the claim. 38 U.S.C.A. § 7105(d); 38 C.F.R. § 20.101(d). Direct Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Cervical Disorder The Veteran has a cervical disorder. The Veteran also had an in-service motor vehicle accident (MVA) in 1971, which is well documented. These satisfy the first and second prongs of service connection. This appeal turns on the third prong of service connection - medical nexus. VA examined the Veteran in May 2010 for compensation purposes. The examiner did not opine on nexus. She stated "this is a complicated case. I am an internist and don't have the expertise to grant the requested opinion. I suggest you get an opinion from an orthopedic specialist." In response, VA obtained an addendum opinion from a D.O., i.e., a doctor of osteopathy, in Philadelphia. The D.O. did not find a nexus because the Veteran did not complain of neck pain at the time of the MVA, nor were there "objective findings of the cervical spine condition following the" MVA. The Board notes three problems with this opinion. First, there is no indication that the D.O. possesses an expertise in orthopedics, which the compensation examiner expressly noted was necessary in this case. Second, the D.O. did not address if the MVA set in motion the cervical disorder that currently exists. Third, despite claiming to have reviewed the claims file, the D.O. did not address that the Veteran's treating physicians at VA have repeatedly noted in the "Assessment" field of multiple treatment records that the Veteran has a "[history] of cervical spine stenosis from MVA in service." The Board could order further medical inquiry to develop the claim, but it would not materially assist it in its determination. At a minimum, it is clear the question of whether the Veteran's MVA caused his cervical disorder is in equipoise. As such, this satisfies the third prong of service connection. All three prongs of service connection are met. Therefore, the Board grants the appeal. ORDER Whether new and material evidence has been received for a claim of service connection for a low back disorder is dismissed. Entitlement to service connection for a cervical disorder is granted. REMAND In November 2010, VA received a statement in which the Veteran stated he "was having problems in [his] legs and hips from [his back]." This resulted in Issues 3-4 above. Given the Board's grant of service connection above, the Board will remand for a VA compensation examination to determine the etiology of the claimed disorders. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a copy of his service treatment records pursuant to his June 2012 Freedom of Information Act request. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current bilateral hip disorder and bilateral leg disorder. Provide the examiner with access to the claims file. For each hip disorder diagnosed, the examiner should answer the following questions: a) Is it at least as likely as not (50 percent or greater) that the Veteran's service-connected cervical disorder CAUSED his hip disorder? Why or why not? b) Is it at least as likely as not (50 percent or greater) that the Veteran's service-connected cervical disorder AGGRAVATED his hip disorder? Why or why not? For each leg disorder diagnosed, the examiner should answer the following questions: c) Is it at least as likely as not (50 percent or greater) that the Veteran's service-connected cervical disorder CAUSED his leg disorder? Why or why not? d) Is it at least as likely as not (50 percent or greater) that the Veteran's service-connected cervical disorder AGGRAVATED his leg disorder? Why or why not? 3. Readjudicate the claims. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs