Citation Nr: 1752942 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-01 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for cervical spondylosis with myelopathy and fusion. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for lumbar degenerative joint and disc disease, previously characterized as low back strain. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 1962 to October 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In July 2017, the Veteran testified on these matters before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, the Veteran's appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these issues so that the Veteran is afforded every possible consideration. The Veteran submitted a request to reopen these previously denied service connection claims in January 2009. The RO scheduled the Veteran for a VA examination in September 2012. However, the VA examiner only evaluated the Veteran's lumbar degenerative joint and disc disease. The examination did not address the Veteran's other condition, cervical spondylosis with myelopathy and fusion. The examiner determined that the Veteran had a pre-existing back condition, which was not aggravated by service. The basis of her medical opinion was that his back condition did not prevent him from active duty service, and that he pursued various jobs that required heavy lifting after service. The Veteran has argued that this examination was inadequate because the examiner did not evaluate his neck condition. Furthermore, in a January 2014 correspondence, the Veteran claimed that his degenerative joint and disc disease of his lumbar and cervical spine may have been caused by or aggravated by left knee injuries he sustained in service. Significantly, in a June 2017 rating decision, the Veteran was granted service connection for left knee instability and left knee strain with patellofemoral pain syndrome. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Under these circumstances, the Board finds that a new VA medical examination and opinion is warranted. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an appropriate VA medical professional to evaluate the current nature and etiology of his claimed cervical spine and lumbar spine disabilities. The examiner must review the claims file and that review must be noted in the report. The examination report should include discussion of the Veteran's documented medical history and assertions. Thereafter, the examiner should provide an opinion with respect to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's cervical spondylosis with myelopathy and fusion was incurred in or caused by an in-service injury, event, or illness? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's cervical spondylosis with myelopathy and fusion was caused by his service-connected left knee disabilities? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's cervical spondylosis with myelopathy and fusion was aggravated by his service-connected left knee disabilities? (d) Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbar degenerative joint and disc disease, previously characterized as low back strain, was incurred in or caused by an in-service injury, event, or illness? (e) Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbar degenerative joint and disc disease, previously characterized as low back strain, was caused by his service-connected left knee disabilities? (f) Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbar degenerative joint and disc disease, previously characterized as low back strain, was aggravated by his service-connected left knee disabilities? In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner must provide a complete rationale for all opinions. If an opinion cannot be reached without resorting to speculation, the examiner must explain why. 2. After ensuring compliance with the above, readjudicate the claims on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).