Citation Nr: 1752557 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-87 278A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating in excess of 30 percent for a neck disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1984 to January 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO) in Columbia, South Carolina. VA jurisdiction was transferred to Winston-Salem, North Carolina. In February 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran is seeking an increased rating for a service connected neck disability. At the February 2017 hearing, he testified that his neck disability had worsened. Specifically, the Veteran stated that he has screws with medical plates in his cervical spine. In addition, he stated in his January 2012 Notice of Disagreement that he had three neck surgeries that included a complete fusion of the cervical spine. At his hearing, the Veteran alleged that he might have unfavorable ankylosis of his cervical spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine Note (5). The Veteran's most recent VA examination was conducted in May 2013. Furthermore, the Veteran testified that there were relevant private and VA treatment records not in the evidence of record. The Veteran's most recent private treatment records in evidence are dated September 2011. However, he testified that he is currently under treatment for his neck disability. As such, efforts should be made to obtain current medical information to evaluate the current nature and severity of the Veteran's neck disability. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of any neck treatment since 2011, and to provide any releases necessary for VA to secure records of such treatment or evaluation. 2. Obtain all outstanding VA medical records related to the Veteran's disabilities, including those from the Charlotte, North Carolina VAMC, dated from 2009 to the present. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected neck disability. In particular, the examiner should address whether the Veteran has favorable or unfavorable ankylosis of the cervical spine. Why or why not? For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine Note (5). 4. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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 is 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. _________________________________________________ MATTHEW W. BLACKWELDER 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).