BVA9506417 DOCKET NO. 92-06 671 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for the residuals of a cervical spine injury. REPRESENTATION Appellant represented by: Bruce H. Harlton, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa Schlecht, Associate Counsel INTRODUCTION The appellant had active service from May 1963 to May 1967 and from March 1971 to April 1972. By a rating decision issued in August 1988, a claim for service connection for a cervical spine injury was denied, and the appellant was notified of that decision that same month. The appellant did not file a timely notice of disagreement with that rating decision, and the decision became final in August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the appellant's request to open a claim of entitlement to service connection for cervical spine disability. The Board remanded the case to the RO in November 1992 for further factual and due process development, which has been completed. REMAND Service connection for a cervical spinal disorder has been denied on the basis that the service medical records and the other data on file do not show that the veteran sustained a cervical spinal injury during service. The appellant contends that his current cervical spine disability is the result of a fall in service which injured his lower spine. Alternatively, the appellant and his representative argue that the appellant's cervical spine disability is secondary to service-connected intervertebral disc syndrome of the lumbar spine and surgeries performed on the lumbar spine. The appellant asserts that the medical evidence of record, including the results of a myelogram performed in March 1991, supports his contention. It has also been asserted that Dr. Coates, a physician who has been treating the veteran has told the veteran that his cervical spinal problems are related to his service connected lumbar spinal problems. Dr. Coates has not submitted this opinion for the record, but should be provided an opportunity to do so before the case is decided on the merits. Evidence submitted since the last final decision on the merits, in August 1988, supports the appellant's contention that he currently has a cervical spine disability, even though no disability was found on examination in 1988. The medical evidence of record does not, however, appear to include a medical opinion as to the etiology of the appellant's current cervical spine disability. Such an medical opinion would assist the Board in determining whether any of the evidence submitted since the August 1988 decision is material. See Cox v. Brown, 5 Vet.App. 95, 98 (1993); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Furthermore, where there is an issue of causation, it has been held that an adequate record should include an opinion as to any relationship between the service connected disability and the disorder for which service connection is claimed. See Moore v. Derwinski, 1 Vet.App. 401 (1991). As the case is to be otherwise remanded, additional development concerning the 1988 motor vehicle accident will be obtained. The record also reveals that the veteran worked as a time as a bus driver for Greyhound. Physical examinations associated with that and other employment will be requested. In light of the appellant's contentions that results of diagnostic studies support a finding that cervical degeneration resulted from lumbar degeneration due to service, the Board believes that further evidentiary development, as specified below, should be completed prior to a final appellate determination. To ensure that VA has met its duty to assist in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. The RO should request that the appellant provide information relating to an automobile accident which occurred in August 1988. The RO should ask the appellant and his representative whether a lawsuit or other action, formal or informal, was taken in regard to this automobile accident, and request a copy of any document describing the outcome of the action. The RO should request that the appellant sign the necessary consent forms to release to VA copies of medical records or other documents submitted by the appellant or his representative or by any other party pertaining to the appellant's medical condition, and the RO should associate such records with the claims folder. The RO should also obtain more complete records of the appellant's November 1988 admission to St. Francis Hospital, Tulsa, Oklahoma, including, but not limited to, all radiology reports or reports of diagnostic studies of the back or neck, consultation reports, physical therapy notes, and all physician's notes. 2. The RO should request that the appellant provide a complete list of all employers following service and request that the appellant sign appropriate consent forms to release to VA any medical examinations made for employment purposes after military service, if such examinations were conducted, and to obtain employment medical records, including but not limited to, records from Greyhound Bus Lines, 319 S. Cincinnati, Tulsa , Oklahoma, 74103, pertaining to occurrences at work in 1982, 1983, and 1987, or at other times, affecting the appellant's back or neck. 3. The appellant should be offered the opportunity to have Dr. Coates submit for the record his reported opinion that there is a causal relationship between the service connected low back disorder and the cervical spinal disorder. Medical records or other findings for the conclusion in the possession of the doctor should accompany the opinion if it is advanced. 4. The appellant should be afforded a VA orthopedic examination and other examinations as necessary to determine the nature and etiology of the appellant's current cervical spine disability. Indicated diagnostic testing should be performed. The examiner should obtain a work and non-work history of neck stressors and injuries. After examining the appellant and reviewing the claims folder, the examiner should provide a medical opinion as to the etiology of degenerative changes of the veteran's cervical spine present on radiologic examination in June 1988. The examiner should also provide a medical opinion as to whether any current cervical spine disability is due solely to degenerative changes present in June 1988 or whether current disability is a result of an automobile accident occurring in August 1988, or is due to other neck stressors or injury. If the appellant's current cervical disability is related in part to the veteran's service-connected lumbar disability and in part to other causes, the examiner should state an opinion as to the effect of each factor in producing the current disability. The examiner should state the basis for conclusions as to the etiology of the veteran's current cervical spine disability. The claims folder must be made available to the examiner for review before the examination and the entry of the opinion. When the aforementioned development has been accomplished, the case should be reviewed by the RO. If the benefits sought are not granted, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. MICHAEL D. LYON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).