Citation Nr: 1807952	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  15-02 102	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected lumbar spine disability.


REPRESENTATION

Veteran represented by:	Robert V. Chisholm, Attorney


ATTORNEY FOR THE BOARD

T. Berryman, Associate Counsel



INTRODUCTION

The Veteran had active service in the Navy from August 1979 to July 1983.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In January 2017, the Board denied the claim, which the Veteran appealed to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court").  In July 2017, the Court issued an order that vacated the Board decision and remanded the claim for compliance with a Joint Motion for Remand (JMR).

In a January 2017 rating decision, the RO granted service connection for a lumbar spine disability, left lower extremity radiculopathy, and a lumbar spine scar.  The Veteran responded in a timely April 2017 Notice of Disagreement (NOD) form regarding the initial ratings assigned, so within one year of notification of that decision, to initiate an appeal.  38 C.F.R. § 20.201 (2017).  The AOJ has not yet issued a statement of the case (SOC) on these issues.  Ordinarily the Veteran's claims should be remanded for issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).  However, in reviewing the Veterans Appeals Control and Locator System (VACOLS), it is clear the AOJ recognizes this issue is on appeal.  Furthermore, in a September 2017 letter, the RO advised the Veteran that his NOD had been received and that additional action was pending.  Thus, a remand of the Veteran's claims for increased ratings is not necessary at this time.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.



REMAND

The Board granted service connection for a lumbar spine disability in a January 2017 Board decision.  The Veteran asserts that his cervical spine disorder is secondary to his now service-connected lumbar spine disability.

The Veteran was afforded VA examinations in May 2016 and August 2016.  However, the VA examiners did not provide an opinion regarding secondary service connection.

As such, consistent with the JMR, the Veteran should be afforded a VA examination to determine if the Veteran's service-connected lumbar spine disability caused or aggravated his cervical spine disorder.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Schedule the Veteran for a VA examination.  The examiner should diagnose any current cervical spine disorder.  The examiner should offer the following opinions:   

a.  Is it at least as likely as not (50 percent or greater) that any cervical spine disorder was caused by a service connected disability (specifically the Veteran's service connected lumbar spine disability)?  Why or why not?  

b.  Is it at least as likely as not (50 percent or greater) that any cervical spine disorder was aggravated by a service connected disability (specifically the Veteran's service connected lumbar spine disability)?  Why or why not?

If aggravation is found, the examiner should identify the baseline level of severity of the cervical spine disorder before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the cervical spine disorder.  38 C.F.R. § 3.310.

2.  Then readjudicate the appeal.  If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response.  Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order.

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).



_________________________________________________
MATTHEW W. BLACKWELDER
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).