Citation Nr: 1761178
Decision Date: 12/29/17 Archive Date: 01/02/18
DOCKET NO. 10-05 003 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
1. Entitlement to service connection for a cervical spine disability (neck condition), to include as secondary to the service-connected right shoulder disability.
2. Entitlement to service connection for a low back disability, to include as secondary to service-connected right shoulder disability.
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
W.T. Snyder, Counsel
The Veteran served on active duty from June 1979 to June 1981.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied the benefits sought on appeal.
In July 2013, the Veteran appeared at a Board hearing via video conference before a Veterans Law Judge (VLJ) then assigned to the Board. A transcript of this hearing is of record. In an October 2017 letter, the Board informed the Veteran that the VLJ who presided at his hearing was no longer employed at the Board, and that his options included requesting another hearing before the VLJ who will decide his case. The letter also instructed the Veteran that if no response was received within 30 days, it will be concluded that he did not desire another hearing. (10/25/2017 Hearing Related) In late November 2017, the Veteran responded that he did not want anther Board hearing and request his case be considered on the evidence of record.
In a decision dated in April 2016, the Board denied the Veteran’s appeal for the above listed service connection issues, and he appealed the decision to the United States Court of Appeals For Veterans Claims (Court). In June 2017, the Veteran, through his attorney, and the Secretary, VA, submitted a Joint Motion For Remand (JMR). In an Order also dated in June 2017, the Court granted the JMR, vacated the April 2016 Board decision, and remanded the case to the Board for further appellate review consistent with the JMR.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
The JMR addressed the February 2014 VA examination that the Board, in part, relied on in its 2016 decision. The February 2014 examination report reflects that the examiner opined that it was not at least as likely as not that the Veteran’s neck or back disorder is causally connected to his active service. Instead, the examiner opined that the disorders were most likely due to age-related changes and the additional risk factors of job-related activities, repetitive stress or loading of the lumbosacral spine, heavy lifting, prolonged sedentary position, whiplash accidents, vibrational stress, family history, overweight, and smoking. The consensus of the parties in the JMR is that the examination was inadequate in that first, the examiner at the 2014 examination erroneously noted that there were no complaints or diagnosis of a low back condition on VA examinations in 1981 and 1984 when a September 1984 treatment note showed complaints of low back pain, left flank pain, and chest pain. Second, the examiner did not address whether the Veteran had other risk factors that may have contributed to development of the neck and back disorders. For example, the examiner did not discuss the type employment the Veteran performed which may have resulted in the noted risk factors. The parties also agreed that the examiner did not discuss and analyze the fact that the Veteran in fact sustained an in-service injury due to lifting and pushing heavy objects. In sum, the noted failures rendered the examination inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007).
Based on the foregoing, the parties to the JMR agreed that the 2016 Board decision is to be vacated and a remand was needed to provide the Veteran with an examination. This Board remand is to comply with the JMR’s instructions and provide the Veteran with a new VA examination and opinion.
Accordingly, the case is REMANDED for the following actions:
1. Schedule the Veteran for an appropriate VA examination to assess the etiology of his neck and low back disorders. After reviewing the claims file to become familiar with the Veteran’s pertinent medical history, the examiner is to address the following:
Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current degenerative joint disease and disc disease of the cervical spine is caused by or otherwise began in service?
Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current degenerative joint disease and disc disease of the lumbar spine caused by or otherwise began in service?
In doing so, the examiner is to refer to the points agreed upon in the JMR (and outlined above in the body of this Remand), beginning with the fact that the Veteran’s medical records in fact note complaints in 1981 and September 1984. Ask the examiner to specifically identify the risk factors individually applicable to the Veteran, to include what noted employment performed by the Veteran increased his risk to develop a neck and back condition. The examiner should consider the fact that the evidence of record notes that the Veteran had not worked since 2009. The examination is to discuss the September 1981 examination showing he injured himself in service while lifting “very heavy” objects.
A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered.
If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).
2. After the above is complete, re-adjudicate the issues on appeal. If the decision remains in anyway adverse to the Veteran, issue him and his representative a Supplemental Statement of the Case (SSOC) and then return the case to the Board, if all is in order.
The Veteran 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).
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 the appeal. 38 C.F.R. § 20.1100(b) (2017).