Citation Nr: 18158888 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 08-27 415 DATE: December 19, 2018 REMANDED Entitlement to service connection for disability of the cervical spine, to include as secondary to service-connected disability of the lumbar spine, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1979 to December 1983. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The RO denied service connection for cervical spine disability, finding that it was not incurred in service. In July 2012, the Board remanded the claim on appeal because the medical opinion that had been obtained in connection with the claim was inadequate. In September 2014, the Board remanded the claim because the examiner had not fully complied with the July 2012 remand instructions in terms of providing an opinion with respect to whether the disability of the Veteran’s cervical spine was secondary to service-connected disability of his lumbar spine. In January 2016, the Board again remanded the claim, this time because a new medical opinion that had been obtained was based on an inaccurate factual premise. After undertaking additional development, the Board denied the appeal in March 2017. The Board found that the disability of the Veteran’s cervical spine was not etiologically related to service and was not caused or aggravated by his service-connected lumbar spine disability. The Veteran appealed the Board’s March 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Memorandum Decision, the Court vacated the Board’s March 2017 decision and remanded the matter for further proceedings. Entitlement to service connection for disability of the cervical spine, to include as secondary to service-connected disability of the lumbar spine, is remanded. On appeal to the Court, the Veteran and his representative argued that the Board erred by improperly inferring that an April 2016 VA medical examiner had provided an adequate opinion on secondary service connection because: (1) the opinion did not contain any discussion of whether the Veteran’s lumbar spine condition aggravated his cervical spine condition; and, as such (2) the Board’s conclusion that the examiner had intended to state that there was no evidence (instead of “there is evidence”) of aggravation was unsupported by the record. The Court agreed with the points made by the appellant. In light of the foregoing, the Board will seek a supplemental report from the April 2016 examiner. This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, make arrangements to provide the record on appeal to the VA examiner who previously offered opinions in this case in April 2016. The examiner should be asked to review the expanded record and prepare a supplemental report on the matter of whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability of the Veteran’s cervical spine has been aggravated (i.e., worsened beyond natural progression) by the service-connected disability of his lumbar spine. If the April 2016 examiner is no longer employed by VA, or is otherwise unable to provide the opinion requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Iglesias, Law Clerk