Citation Nr: 18154464 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 15-19 124 DATE: November 30, 2018 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a right hip disability, to include as secondary to service-connected right ankle disability, is remanded. REASONS FOR REMAND The Veteran had active military service from August 1979 to March 1980 and from November 1990 to April 1991. He also had service in the Army Reserve with periods of active duty for training (ADT) and inactive duty training (IDT). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2009 and April 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the issue of entitlement to service connection for a right hip disability has been developed as a petition to reopen the previously denied claim of service connection for a right hip disability. However, the Board finds that August 2010 correspondence submitted by the Veteran constitutes a timely notice of disagreement with the December 2009 rating decision that previously denied service connection for a right hip disability, and therefore that decision was not final. See 38 C.F.R. §§ 20.200, 20.201. Therefore, new and material evidence is not required and the issue has been recharacterized. The Board observes that the issue of entitlement to nonservice-connected pension was certified to the Board. However, the above-mentioned claim was granted in a September 2016 rating decision. The grant of nonservice-connected pension constitutes a full award of the benefit sought on appeal with respect to this claim. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the Veteran has initiated an appeal with regards to the nonservice-connected pension issue. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Thus, the issue is not in appellate status at this juncture. With respect to the cervical spine claim, the Veteran, in a June 2011 correspondence, reported that his cervical spine was injured while riding a Bradley Fighting Vehicle. Subsequently, in the Veteran’s June 2015 substantive appeal, he asserted that his cervical spine disability is due to his military occupational specialty as a “ground pounder” from 1979 to 2000. He reported that for most of that time, he was required to march with a rucksack on his back, which weighed between 65 and 75 pounds. In addition to that weight, he carried a squad automatic weapon and bandolier of ammunition. He contends that the weight during forced marches damaged his cervical spine. As noted above, the evidence reflects that the Veteran had active duty service from August 1979 to March 1980 and from November 1990 to April 1991 and service in the Army Reserve with periods of ADT and IDT. Service treatment records for the Veteran’s periods of active duty service are of record. However, service treatment records from the Veteran’s Reserve service have not been obtained. As the Veteran has indicated that his cervical spine disability is due to active duty service, ADT, and IDT, Reserve medical records should be obtained for review. Additionally, the Board observes that the Veteran has not been provided a VA examination in conjunction with his cervical spine disability claim. Given the evidence of recording demonstrating a diagnosis of degenerative disc disease of the cervical spine and the Veteran’s contention that his symptoms have been present since active duty, the Board finds that a VA examination should be provided on remand. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the right hip claim, the Veteran contends that the claimed disability is secondary to his service-connected right ankle disability. The Veteran was provided a VA examination in September 2018. Following evaluation of the Veteran, the examiner indicated that the examination revealed a normal hip and diagnostic study confirmed the examination findings. Notwithstanding, subsequent VA clinical records reveal a diagnosis of chronic pain syndrome. In light of the subsequent evidence of a right hip disorder, the Board finds that an additional VA examination should be provided on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). The matter is REMANDED for the following action: 1. Take all appropriate action to obtain the Veteran’s complete service treatment records, to include for any periods of Army Reserve service and for any injuries sustained while riding a Bradley Fighting Vehicle, through official sources. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his cervical spine disability. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. The examiner should identify all cervical spine disabilities found on examination and diagnosed since September 2010. Thereafter, the examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine disability was incurred in service or is otherwise causally related to his active service or any incident therein, to include any injury while riding in a Bradley Fighting Vehicle and/or carrying heavy objects, including a rucksack, weapons and ammunition, during marches during training. In addressing the above, the examiner should consider any of the Veteran’s lay statements of record regarding onset of symptoms and any continuity of symptomatology since onset and/or since discharge from service. Finally, the examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his right hip disability. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. The examiner should identify all right hip disabilities found on examination and diagnosed since October 2009. Thereafter, for any right hip disorders found, the examiner should opine whether such at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service. Next, for right hip disorder found that is not directly found to be related to service, the examiner should also opine whether any such disorders at least as likely as not were (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected In addressing the above, the examiner should consider any of the Veteran’s lay statements of record regarding onset of symptoms and any continuity of symptomatology since onset and/or since discharge from service. Finally, the examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. right ankle disability, to include any abnormal gait or weightbearing as a result of that disability. The examiner is reminded that he or she must address both prongs (a) and (b) above. Finally, in addressing the above opinions, the examiner should consider any of the Veteran’s lay statements of record regarding onset of symptoms and any continuity of symptomatology since onset and/or since discharge from service. Finally, the examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel