Citation Nr: 1803560 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-23 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a rating in excess of 30 percent for degenerative joint disease of the cervical spine. 2. Entitlement to service connection for a left shoulder disorder, including as secondary to degenerative joint disease of the cervical spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel INTRODUCTION The Veteran served in the United States Navy from October 1974 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied an increased rating for the Veteran's degenerative joint disease of the cervical spine; and, denied service connection for a left shoulder disorder. The Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2017. A transcript of that hearing has been associated with the Veteran's claim file. Additional evidence was provided by the Veteran, through his representative, and has been associated with the claims file. The Veteran waived consideration of this additional evidence by the local RO, and requests adjudication by the Board. Both the claim for an increased rating for service-connected degenerative joint disease of the cervical spine and the claim for service connection for a left shoulder disorder are remanded to the Agency of Original Jurisdiction (AOJ) for further development. REMAND The Veteran contends, in essence, that his service-connected degenerative joint disease of the cervical spine is more severe than currently rated. He was last provided a VA examination to address the severity of his lumbar spine disability in April 2013. In October 2017, more than four years later, the Veteran testified at his hearing before the undersigned that his degenerative joint disease of the cervical spine has worsened since his last evaluation. A Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Since the evidence of record suggests a worsening of the Veteran's degenerative joint disease of the cervical spine, VA's duty to assist requires a "thorough and contemporaneous" medical examination. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). With regard to the claim for service connection for a left shoulder disorder, the most recent VA examination report is dated in April 2013. The examiner opined that the Veteran's left shoulder disorder was not secondary to the service-connected degenerative joint disease of the cervical spine; however, no opinion was provided as to whether or not the left shoulder condition was related to service on a direct basis. The examiner also failed to provide an opinion as to whether the Veteran's left shoulder disorder has been aggravated by his service-connected cervical spine disability. Thus, on remand the examiner must opine whether service connection for the Veteran's left shoulder disorder can be established on a direct basis, and whether the left shoulder disorder has been aggravated by degenerative joint disease of the cervical spine. Accordingly, the claims are remanded for the following action: 1. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the AOJ. 2. The Veteran must be provided a VA examination by an appropriate examiner, to assess the current severity of his degenerative joint disease of the cervical spine. Any indicated studies should be performed. The examiner must review the results of any studies, to include x-rays, prior to completing the examination report. The examination report must include a discussion of the Veteran's documented medical history and lay statements. The examiner must report the range of motion measurements for the cervical spine in active motion, passive motion, weight-bearing, and non-weight-bearing (if applicable). If the examiner is unable to conduct the required testing, or concludes the requested testing is not necessary, he or she must clearly explain why that is so. See Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner must further comment as to whether there is any pain, weakened movement, excess fatigability or incoordination on movement, and whether there is likely to be additional range of motion loss due to any of the following: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during any flare-ups. All limitation of function must be identified. The examiner must discuss whether the Veteran has ankylosis of the cervical spine and, if so, whether it is favorable or unfavorable. The examiner must also determine whether the Veteran experiences intervertebral disc syndrome of the cervical spine. If so, the examiner must document the number of weeks, if any, during the past 12 months that the Veteran has had "incapacitating episodes," defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. A rationale must be given for all opinions rendered. 3. The Veteran must be provided a VA examination by an appropriate examiner, to assess the current severity and etiology of his left shoulder disorder. Any indicated studies should be performed. The examiner must review the results of any studies, to include x-rays, prior to completing the examination report. The examination report must include a discussion of the Veteran's documented medical history and lay statements. The examiner must opine as to whether it is at least as likely as not (i.e., there is at least a 50 percent or greater probability) that any currently diagnosed left shoulder disorder began in or is otherwise etiologically linked to service. The examiner must also offer an opinon as to whether it is at least as likely as not that any diagnosed left shoulder disorder was caused by the Veteran's service-connected degenerative joint disease of the cervical spine. The examiner must also offer an opinon as to whether it is at least as likely as not that any diagnosed left shoulder disorder was aggravated by the Veteran's service-connected degenerative joint disease of the cervical spine. A complete rationale must be given for all opinions and conclusions expressed. The examiner must discuss the April 2013 VA examination of the left shoulder disorder. The examiner is advised that the Veteran is competent to report history and symptoms, and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports, the examiner should provide a rationale for doing so. 4. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, and should be given an opportunity to respond. 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. §§ 5109B, 7112 (2012). _________________________________________________ CAROLINE B. FLEMING 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).