Citation Nr: 1756072 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 10-07 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an esophagus disability, to include as secondary to service-connected cervical spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from February 1984 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case was previously remanded by the Board in August 2013 and February 2016. The case has been returned to the Board for review. The December 2008 rating decision also denied entitlement to service connection for hemorrhoids. The Veteran submitted a timely notice of disagreement in March 2009 and a statement of the case was issued in December 2009 with respect to the issues of entitlement to service connection for an esophagus disability and entitlement to service connection for hemorrhoids. The Veteran submitted a VA Form 9 in February 2010 and indicated that he was only appealing the issue of entitlement to service connection for an esophagus disability. Accordingly, the Board finds that the Veteran did not appeal the issue of entitlement to service connection for hemorrhoids and the issue is not before the Board. 38 C.F.R. § 20.202 (2017); Cf. Evans v. Shinseki, 25 Vet. App. 7 (2011). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that the matter on appeal must be remanded for further development before a decision may be made on the merits. The Veteran contends that he currently has an esophagus disability that is secondary to his service-connected status post cervical spine fusion. See Notice of Disagreement received March 2009. The Veteran was provided a VA examination related to his claim in September 2008. The September 2008 VA examiner stated that the Veteran needed to be provided an esophagogastroduodenoscopy (EGD), motility study and reassessment of the cervical spine with imaging in order to determine whether his diagnosed grade B esophagitis was secondary to his service-connected status post cervical spine fusion. The Veteran was provided an EGD and motility study in March 2009. However, the record does not reflect that the Veteran was provided a reassessment of the cervical spine with imaging. The Veteran was afforded a VA addendum opinion in November 2009. The VA examiner opined that the Veteran's esophagus disability was not "caused by, or the result of, status post cervical spine fusion." In its August 2013 remand, the Board directed the RO to ensure that the Veteran is provided cervical spine imaging prior to a new VA examination to determine whether the Veteran's esophagus disability is secondary to his service-connected status post cervical spine fusion. The Veteran was provided a second VA addendum opinion in September 2013. The September 2013 VA examiner opined that the Veteran's esophagus disability was "less likely than not" incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the VA examiner stated that "cervical spine fusion has not caused esophagitis or dysphagia." However, the record does not reflect that the Veteran was afforded a reassessment of the cervical spine with imaging prior to the September 2013 VA addendum opinion. Since the Veteran was not afforded cervical spine imaging prior to the September 2013 VA addendum opinion, the Board remanded the Veteran's claim in February 2016. The February 2016 Board remand directed the VA examiner to state whether cervical spine imaging is medically necessary in order to provide an accurate opinion as to whether there is a causal relationship between the diagnosed esophagus disability and the Veteran's service-connected status post cervical spine fusion. The February 2016 Board remand further directed that if the VA examiner determines that cervical spine imaging is required to provide an accurate opinion then the Veteran should be scheduled for cervical spine imaging. The Veteran was provided a VA addendum opinion in April 2016. The VA examiner opined that the Veteran's esophagus disability was "less likely than not" proximately due to or the result of the Veteran's service connected condition. As rationale, the April 2016 VA examiner stated that the muscles of the esophagus and stomach are not innervated by cervical spine nerves. The April 2016 VA examiner further stated that the Veteran's cervical spine fusion has not caused esophagitis or dysphagia. The Board finds that the April 2016 VA addendum opinion is not adequate for adjudication purposes and does not substantially comply with the February 2016 Board remand. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268 (1998). The February 2016 Board remand directed the VA examiner to discuss whether a reassessment of the cervical spine with imaging was necessary in order to provide an accurate opinion. However, the April 2016 VA examiner provided an opinion without discussing whether cervical spine imaging was necessary in order to provide an accurate opinion. Additionally, the April 2016 VA examiner did not provide an opinion as to whether it is at least as likely as not that the Veteran's current esophagus disability was aggravated by his service-connected status post cervical spine fusion. In that regard, the Board notes that an opinion to the effect that one disability "is not caused by or a result of" another disability does not answer the question of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Because the April 2016 VA examination is inadequate for decision-making purposes, the issue must be remanded for a further VA opinion. Barr, 21 Vet. App. 312, Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the April 2016 VA examiner, or an appropriately qualified examiner if the April 2016 VA examiner is unavailable, to provide an addendum opinion regarding the nature and etiology of the Veteran's esophagus disability. Provide a copy of this remand and the claims file to the examiner for review. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such examination should be scheduled. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's esophagus disability is related to his active service. If the response to (a) is negative, the VA examiner should state whether cervical spine imaging is medically necessary in order to provide an accurate opinion as to whether there is a relationship between the Veteran's esophagus disability and his service-connected status post cervical spine fusion. If the examiner determines that cervical spine imaging is required, the Veteran should be scheduled for an appropriate imaging study. If the examiner determines that cervical spine imaging is not required, the examiner should provide his or her reasons for that determination. Afterwards, the examiner must address the following: b) Whether, it is at least as likely as not (50 percent or greater probability) that the Veteran's esophagus disability is proximately due to, or the result of, his service-connected disabilities, specifically to include his service-connected status post cervical spine fusion. c) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's esophagus disability is chronically aggravated by his service-connected disabilities, to include his service-connected status post cervical spine fusion. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. The examiner must note that an opinion to the effect that one disability "is not caused by or the result of" another disability does not answer the question of aggravation and will necessitate a further opinion. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). In providing the opinion(s) requested above, the examiner must specifically discuss/reconcile the September 2008 VA examiner's opinion that, if all requested diagnostic studies are negative, the current esophagus symptoms should be considered likely due to the cervical spine surgery. Additionally, the VA examiner must specifically discuss the Veteran's statement that he was informed by his surgeon that a certain amount of dysphagia would be expected due to his cervical spine fusion surgery and that his fusion surgery was atypical or more severe than most. The examiner must indicate that the record was reviewed. A complete rationale must be provided for each opinion given. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether service connection for an esophagus disability, to include as secondary to service-connected disability, may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. 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 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). _________________________________________________ U. R. POWELL 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).