Guest allanopie Posted December 8, 2005 Share Posted December 8, 2005 Citation NR: 9606465 Decision Date: 03/13/96 Archive Date: 03/16/96 DOCKET NO. 91-44 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a back and neck disorder, claimed as residuals of motor vehicle accidents incurred in service. REPRESENTATION Appellant represented by: Arizona Veterans Service Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Charles G. Sener INTRODUCTION The appellant had active service from March 1968 to December 1971. In a March 1972 rating decision, the Department of Veterans Affairs (VA) Detroit, Michigan, Regional Office denied service connection for residuals of a motor vehicle accident, including a neck and back disorder. The appellant received notification of that rating decision in March 1972, and he did not file a notice of disagreement with that rating decision. Therefore, the March 1972 rating decision became final in March 1973, one year after the VA's notification to the appellant of that rating decision. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 1990 and June 1991 rating decisions of the VA Phoenix, Arizona, Regional Office (RO), which denied a claim of entitlement to service connection for a back and neck disorder, claimed as residuals of motor vehicle accidents incurred in service, without determining whether the appellant had submitted new and material evidence to reopen the March 1972 rating decision pursuant to 38 U.S.C.A. §§ 7105, 5108 and 38 C.F.R. § 3.156(a). A December 1991 Board decision denied the appellant's claim also without considering whether new and material evidence was submitted. In an Unopposed Motion for Remand by the Appellee, however, the United States Court of Veterans Appeals (Court) vacated the Board's decision and remanded the claim to the Board for compliance with the Court's instructions. Switzer v. Principi, U.S. Vet.App. No. 92-450 (Dec. 12, 1992). The Board remanded the case to the RO for additional evidentiary development in July 1993, including a request for orthopedic review of the record and medical examination, if deemed appropriate, to determine whether there is a causal relationship between the appellant's current back and neck disorder and service. Consequently, an October 1995 rating decision again denied the claim. The case was returned and docketed at the Board, and is now ready for appellate review and consideration. REMAND The appellant contends that service connection is warranted for a back and neck disorder because he believes that whiplash he suffered in service as a result of motor vehicle accidents caused him to develop arthritis in his spine. To support his assertion, he has submitted outpatient Arizona Department of Corrections medical treatment records, variously dated from November 1987 to August 1993, showing treatment for cervical and thoracic arthritis, along with a statement relating arthritis of the spine to a whiplash injury suffered in a 1969 motor vehicle accident. Also of record are private medical statements, dated in October 1990 and May 1991, from C.E.R., D.C., describing medical treatment received in 1979 for apparent residuals of a 1969 motor vehicle accident, and a May 1991 opinion that "t is reasonable to believe that the trauma [the appellant] sustained [in service] is directly related to the degeneration that is now occurring in his spine." Although review of the Court's December 1992 Motion for Remand did not include an express finding relating to whether new and material evidence was submitted to reopen the March 1972 rating decision, the Board concludes that the appellant did in fact submit new and material evidence bearing directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1994). This does not mean that the claim will always be allowed, just that the case will be reopened and the new evidence will be considered in the context of all the other evidence for a new determination of the issues. Smith v. Derwinski, 1 Vet.App. 178, 179-80 (1991). In its December 1992 Motion for Remand, the Court explicitly requested that the Board seek to obtain additional medical records, consider and specifically discuss the October 1990 and May 1991 private medical statements, from C.E.R., D.C., and obtain a physical examination of the appellant, if deemed warranted, along with an advisory medical opinion to address whether the appellant's trauma in service caused arthritis. Furthermore, the Board was requested to explain the reasons and bases for its decision, including an explanation as to why it is not deemed warranted or reasonably feasible to obtain a physical examination. Finally, any medical conclusions reached should be supported by a medical basis such as an advisory opinion or recognized medical treatise(s). Colvin v. Derwinski, 1 Vet.App. 171 (1991). Review of the appellant's claims file reveals that the RO was able to obtain copies of Arizona Department of Corrections outpatient medical treatment records, dated from November 1987 to August 1993, and medical records from the CIGNA health plan, dated from March 1985 to August 1986. Unfortunately, the RO was unable to obtain any additional private medical records, and it was noted in May 1995 that the Taos Police Department, Taos County Sheriff, and New Mexico State Police had no records concerning the appellant's February 1969 motor vehicle accident. Review of the pertinent medical evidence of record reveals private medical records, from the appellant's previous employer, dated in November 1966 and April 1972, showing treatment for dorsal myositis. Although the appellant indicated in a January 1968 report of medical history that he had had recurrent back pain and was unable to lift anything or stand for very long, a January 1968 service enlistment report of medical examination disclosed normal clinical evaluation of the appellant's spine, with no defect or abnormality noted. Service medical records showed that the appellant was hospitalized in February 1969 for three days for residuals of a motor vehicle accident. A February 1969 service medical record listed final diagnoses of concussion of brain, simple wounds of face and neck, and contusion of left buttock. A February 1970 service report of medical examination divulged normal clinical evaluation of the appellant's spine, with no defect or abnormality listed. Furthermore, it was noted that the appellant had been involved in a previous motor vehicle accident, with loss of consciousness secondary to a concussion; but it was specifically stated that the appellant had had no complications or problems since that time. A June 1971 service radiographic report for a sinus series, which was normal, listed a complaint of neck discomfort. It was recorded in a July 1971 service medical record that the appellant had been in a motor vehicle accident, hitting his face against the steering wheel, with complaints of pain and coughing up blood. A November 1971 service separation report of medical examination demonstrated normal clinical evaluation of the appellant's spine, with no defect or abnormality disclosed. However, an examiner reported that the appellant had scars on his face that were not previously of record. Additional private medical records, from the appellant's former employer, dated in December 1971, showed a complaint of an ache between the shoulders and stiffness of the neck. A history of whiplash injury was also recorded. In January 1972, the appellant stated that his back had hurt since being re-hired; and in May 1972 he also complained of back pain. At a January 1972 VA report of medical examination, the appellant stated that he had been in a motor vehicle accident in February 1969 and that after returning to his civilian occupation he had developed a knot in the back of his neck along with burning between the shoulder blades. He denied low back pain, and related that he experienced trouble with his neck after heavy lifting. Physical examination of the appellant's back and neck disclosed no evidence of spasticity or point tenderness. An examiner recorded normal range of cervical, dorsal, and lumbar spinal mobility, with bilateral, equal straight leg raising. Also of record are January 1972 VA radiographic reports demonstrating normal studies of the cervical and dorsal spine. Finally, the January 1972 VA report of medical examination indicated that the appellant had a "history of neck and upper back injury; no sequela found." A June 1972 private medical statement, from F.J.H., M.D., indicated that the appellant was receiving care for a back problem. CIGNA health plan records, for the period from March 1985 to August 1986, showed treatment for complaints of headaches and chronic neck pain. Also, an April 1985 radiologic report noted a clinical diagnosis of chronic neck pain along with a history of whiplash. Findings from that radiologic report revealed straightening of curvature and reversal of curvature at C4/C5, narrowed interspace at C6/C7, with large hypertrophic changes, both anteriorly and posteriorly, and bilateral posterior spurs causing deformity of the neural foramina. As previously stated, a November 1987 Arizona Department of Corrections medical record included a medical opinion that the appellant had thoracic and cervical arthritis as a result of whiplash from a 1969 motor vehicle accident. Furthermore, private medical statements, from C.E.R., D.C., dated in October 1990 and May 1991, also suggested that the appellant's degeneration in his spine is related to the February 1969 motor vehicle trauma. Unfortunately, the Board notes that neither opinion cited to medical authority or investigation, including medical treatise(s), to support its conclusion. In light of the foregoing, the Board concludes that a VA medical examination along with a thorough and conscientious review of the appellant's entire medical record relating to a back and neck disorder should be performed. Although a November 1994 VA report of compensation and pension examination indicated that the appellant's records were reviewed, without a physical examination, the Board notes that no reasonable explanation was given for not affording the appellant a physical examination. While the Board is aware that the appellant may be incarcerated, certainly this is not adequate justification for not performing a medical examination. Furthermore, the November 1994 VA report included review of the appellant's service medical records, but it failed to note that the appellant received treatment in July 1971 for residuals of a second motor vehicle accident. Moreover, while a VA physician opined that it was "highly unlikely, but distantly remote that [the appellant's] current symptomatology could be related to [injuries received in service,]" the Board observes that the VA physician failed to discuss the significance, or lack thereof, of the post service medical records showing treatment for complaints of back pain and a diagnosis of arthritis in November 1987, almost 16 years after the appellant's separation from service. Specifically, the VA physician did not address the November 1987 Arizona Department of Corrections medical opinion and the statements of C.E.R., D.C., dated in October 1990 and May 1991, listed above, attributing the appellant's current spine disorder to whiplash from a February 1969 motor vehicle accident. 38 C.F.R. § 3.304© (1994) indicates that development of evidence in connection with claims for service connection will be accomplished when deemed necessary, and 38 C.F.R. § 4.2 (1994) notes that if an examination report does not contain sufficient detail, then the report should be returned as inadequate for evaluation purposes. Inasmuch as the Board is prevented from rendering medical conclusions, which should be supported by a medical basis such as an advisory opinion or recognized medical treatise(s) (see Colvin v. Derwinski, 1 Vet.App. 171 (1991)), the Board determines that the November 1994 VA report of compensation and pension examination is inadequate for evaluation purposes. The Court has held that the VA's duty to assist the appellant in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA medical examinations if existing medical information is insufficient for evaluation purposes. Littke v. Derwinski, 1 Vet.App. 90 (1990). Therefore, this case is REMANDED to the RO for the following actions, which should be performed in the most efficacious manner that is deemed feasible: 1. The appellant should be afforded an examination by an orthopedic specialist who has not previously reviewed the appellant's claims file, if possible, in accordance with the VA's Physician's Guide for Disability Evaluation Examinations, in order to allow the RO to ascertain the nature and severity of disabilities in the appellant's spine. If it is determined that a medical examination is not deemed warranted or reasonably feasible, the rationale for that determination must be explicitly articulated. All indicated special studies should be conducted, including x-ray examination and both active and passive range of motion testing, if not medically contraindicated. The examiner should be requested to express an opinion as to the etiology of the appellant's current back and neck disorder, diagnosed as arthritis in 1987, particularly as to whether it is proximately due to or the result of motor vehicle accidents that occurred in service in February 1969 and July 1971. The examiner must review a copy of the REMAND and the appellant's claims folder prior to the examination, with particular attention given to the November 1987 Arizona Department of Corrections medical opinion and the statements of C.E.R., D.C., dated in October 1990 and May 1991, attributing the appellant's current spine disorder to whiplash from a February 1969 motor vehicle accident. The examiner's report should also include a complete rationale, with supporting authority or investigation, for all conclusions reached. 2. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the examination report does not include adequate responses to the specific opinions requested, the report must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1994) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet.App. 121, 124 (1991); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992); and Ardison v. Brown, 6 Vet.App. 405, 407 (1994). After the above requested actions have been completed, the RO should review the appellant's claim with regard to the additional evidence obtained. If the benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant and his representative. They should be afforded a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain additional medical evidence and to ensure that the appellant receives his procedural due process rights. No opinion, either legal or factual, is intimated as to the merits of the appellant's claim by this REMAND. He is not required to undertake any additional action until he receives further notification from VA. JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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(:) (1995). - 2 - Link to comment Share on other sites More sharing options...
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Guest allanopie
Citation NR: 9606465
Decision Date: 03/13/96 Archive Date: 03/16/96
DOCKET NO. 91-44 204 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to service connection for a back and neck
disorder, claimed as residuals of motor vehicle accidents
incurred in service.
REPRESENTATION
Appellant represented by: Arizona Veterans Service
Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Charles G. Sener
INTRODUCTION
The appellant had active service from March 1968 to December
1971.
In a March 1972 rating decision, the Department of Veterans
Affairs (VA) Detroit, Michigan, Regional Office denied
service connection for residuals of a motor vehicle accident,
including a neck and back disorder. The appellant received
notification of that rating decision in March 1972, and he
did not file a notice of disagreement with that rating
decision. Therefore, the March 1972 rating decision became
final in March 1973, one year after the VA's notification to
the appellant of that rating decision.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from November 1990 and June 1991 rating
decisions of the VA Phoenix, Arizona, Regional Office (RO),
which denied a claim of entitlement to service connection for
a back and neck disorder, claimed as residuals of motor
vehicle accidents incurred in service, without determining
whether the appellant had submitted new and material evidence
to reopen the March 1972 rating decision pursuant to
38 U.S.C.A. §§ 7105, 5108 and 38 C.F.R. § 3.156(a).
A December 1991 Board decision denied the appellant's claim
also without considering whether new and material evidence
was submitted. In an Unopposed Motion for Remand by the
Appellee, however, the United States Court of Veterans
Appeals (Court) vacated the Board's decision and remanded the
claim to the Board for compliance with the Court's
instructions. Switzer v. Principi, U.S. Vet.App. No. 92-450
(Dec. 12, 1992). The Board remanded the case to the RO for
additional evidentiary development in July 1993, including a
request for orthopedic review of the record and medical
examination, if deemed appropriate, to determine whether
there is a causal relationship between the appellant's
current back and neck disorder and service. Consequently, an
October 1995 rating decision again denied the claim. The
case was returned and docketed at the Board, and is now ready
for appellate review and consideration.
REMAND
The appellant contends that service connection is warranted
for a back and neck disorder because he believes that
whiplash he suffered in service as a result of motor vehicle
accidents caused him to develop arthritis in his spine. To
support his assertion, he has submitted outpatient Arizona
Department of Corrections medical treatment records,
variously dated from November 1987 to August 1993, showing
treatment for cervical and thoracic arthritis, along with a
statement relating arthritis of the spine to a whiplash
injury suffered in a 1969 motor vehicle accident. Also of
record are private medical statements, dated in October 1990
and May 1991, from C.E.R., D.C., describing medical treatment
received in 1979 for apparent residuals of a 1969 motor
vehicle accident, and a May 1991 opinion that "t is
reasonable to believe that the trauma [the appellant]
sustained [in service] is directly related to the
degeneration that is now occurring in his spine."
Although review of the Court's December 1992 Motion for
Remand did not include an express finding relating to whether
new and material evidence was submitted to reopen the March
1972 rating decision, the Board concludes that the appellant
did in fact submit new and material evidence bearing directly
and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant, and
which by itself or in connection with evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156(a) (1994). This does not mean that the claim will
always be allowed, just that the case will be reopened and
the new evidence will be considered in the context of all the
other evidence for a new determination of the issues.
Smith v. Derwinski, 1 Vet.App. 178, 179-80 (1991).
In its December 1992 Motion for Remand, the Court explicitly
requested that the Board seek to obtain additional medical
records, consider and specifically discuss the October 1990
and May 1991 private medical statements, from C.E.R., D.C.,
and obtain a physical examination of the appellant, if deemed
warranted, along with an advisory medical opinion to address
whether the appellant's trauma in service caused arthritis.
Furthermore, the Board was requested to explain the reasons
and bases for its decision, including an explanation as to
why it is not deemed warranted or reasonably feasible to
obtain a physical examination. Finally, any medical
conclusions reached should be supported by a medical basis
such as an advisory opinion or recognized medical
treatise(s). Colvin v. Derwinski, 1 Vet.App. 171 (1991).
Review of the appellant's claims file reveals that the RO was
able to obtain copies of Arizona Department of Corrections
outpatient medical treatment records, dated from November
1987 to August 1993, and medical records from the CIGNA
health plan, dated from March 1985 to August 1986.
Unfortunately, the RO was unable to obtain any additional
private medical records, and it was noted in May 1995 that
the Taos Police Department, Taos County Sheriff, and New
Mexico State Police had no records concerning the appellant's
February 1969 motor vehicle accident.
Review of the pertinent medical evidence of record reveals
private medical records, from the appellant's previous
employer, dated in November 1966 and April 1972, showing
treatment for dorsal myositis.
Although the appellant indicated in a January 1968 report of
medical history that he had had recurrent back pain and was
unable to lift anything or stand for very long, a January
1968 service enlistment report of medical examination
disclosed normal clinical evaluation of the appellant's
spine, with no defect or abnormality noted.
Service medical records showed that the appellant was
hospitalized in February 1969 for three days for residuals of
a motor vehicle accident. A February 1969 service medical
record listed final diagnoses of concussion of brain, simple
wounds of face and neck, and contusion of left buttock.
A February 1970 service report of medical examination
divulged normal clinical evaluation of the appellant's spine,
with no defect or abnormality listed. Furthermore, it was
noted that the appellant had been involved in a previous
motor vehicle accident, with loss of consciousness secondary
to a concussion; but it was specifically stated that the
appellant had had no complications or problems since that
time.
A June 1971 service radiographic report for a sinus series,
which was normal, listed a complaint of neck discomfort. It
was recorded in a July 1971 service medical record that the
appellant had been in a motor vehicle accident, hitting his
face against the steering wheel, with complaints of pain and
coughing up blood.
A November 1971 service separation report of medical
examination demonstrated normal clinical evaluation of the
appellant's spine, with no defect or abnormality disclosed.
However, an examiner reported that the appellant had scars on
his face that were not previously of record.
Additional private medical records, from the appellant's
former employer, dated in December 1971, showed a complaint
of an ache between the shoulders and stiffness of the neck.
A history of whiplash injury was also recorded. In January
1972, the appellant stated that his back had hurt since being
re-hired; and in May 1972 he also complained of back pain.
At a January 1972 VA report of medical examination, the
appellant stated that he had been in a motor vehicle accident
in February 1969 and that after returning to his civilian
occupation he had developed a knot in the back of his neck
along with burning between the shoulder blades. He denied
low back pain, and related that he experienced trouble with
his neck after heavy lifting. Physical examination of the
appellant's back and neck disclosed no evidence of spasticity
or point tenderness. An examiner recorded normal range of
cervical, dorsal, and lumbar spinal mobility, with bilateral,
equal straight leg raising. Also of record are January 1972
VA radiographic reports demonstrating normal studies of the
cervical and dorsal spine. Finally, the January 1972 VA
report of medical examination indicated that the appellant
had a "history of neck and upper back injury; no sequela
found."
A June 1972 private medical statement, from F.J.H., M.D.,
indicated that the appellant was receiving care for a back
problem.
CIGNA health plan records, for the period from March 1985 to
August 1986, showed treatment for complaints of headaches and
chronic neck pain. Also, an April 1985 radiologic report
noted a clinical diagnosis of chronic neck pain along with a
history of whiplash. Findings from that radiologic report
revealed straightening of curvature and reversal of curvature
at C4/C5, narrowed interspace at C6/C7, with large
hypertrophic changes, both anteriorly and posteriorly, and
bilateral posterior spurs causing deformity of the neural
foramina.
As previously stated, a November 1987 Arizona Department of
Corrections medical record included a medical opinion that
the appellant had thoracic and cervical arthritis as a result
of whiplash from a 1969 motor vehicle accident. Furthermore,
private medical statements, from C.E.R., D.C., dated in
October 1990 and May 1991, also suggested that the
appellant's degeneration in his spine is related to the
February 1969 motor vehicle trauma. Unfortunately, the Board
notes that neither opinion cited to medical authority or
investigation, including medical treatise(s), to support its
conclusion. In light of the foregoing, the Board concludes
that a VA medical examination along with a thorough and
conscientious review of the appellant's entire medical record
relating to a back and neck disorder should be performed.
Although a November 1994 VA report of compensation and
pension examination indicated that the appellant's records
were reviewed, without a physical examination, the Board
notes that no reasonable explanation was given for not
affording the appellant a physical examination. While the
Board is aware that the appellant may be incarcerated,
certainly this is not adequate justification for not
performing a medical examination. Furthermore, the November
1994 VA report included review of the appellant's service
medical records, but it failed to note that the appellant
received treatment in July 1971 for residuals of a second
motor vehicle accident. Moreover, while a VA physician
opined that it was "highly unlikely, but distantly remote
that [the appellant's] current symptomatology could be
related to [injuries received in service,]" the Board
observes that the VA physician failed to discuss the
significance, or lack thereof, of the post service medical
records showing treatment for complaints of back pain and a
diagnosis of arthritis in November 1987, almost 16 years
after the appellant's separation from service. Specifically,
the VA physician did not address the November 1987 Arizona
Department of Corrections medical opinion and the statements
of C.E.R., D.C., dated in October 1990 and May 1991, listed
above, attributing the appellant's current spine disorder to
whiplash from a February 1969 motor vehicle accident.
38 C.F.R. § 3.304© (1994) indicates that development of
evidence in connection with claims for service connection
will be accomplished when deemed necessary, and 38 C.F.R.
§ 4.2 (1994) notes that if an examination report does not
contain sufficient detail, then the report should be returned
as inadequate for evaluation purposes. Inasmuch as the Board
is prevented from rendering medical conclusions, which should
be supported by a medical basis such as an advisory opinion
or recognized medical treatise(s) (see Colvin v. Derwinski,
1 Vet.App. 171 (1991)), the Board determines that the
November 1994 VA report of compensation and pension
examination is inadequate for evaluation purposes.
The Court has held that the VA's duty to assist the appellant
in obtaining and developing available facts and evidence to
support his claim includes obtaining adequate VA medical
examinations if existing medical information is insufficient
for evaluation purposes. Littke v. Derwinski, 1 Vet.App. 90
(1990). Therefore, this case is REMANDED to the RO for the
following actions, which should be performed in the most
efficacious manner that is deemed feasible:
1. The appellant should be afforded an
examination by an orthopedic specialist
who has not previously reviewed the
appellant's claims file, if possible, in
accordance with the VA's Physician's
Guide for Disability Evaluation
Examinations, in order to allow the RO to
ascertain the nature and severity of
disabilities in the appellant's spine.
If it is determined that a medical
examination is not deemed warranted or
reasonably feasible, the rationale for
that determination must be explicitly
articulated.
All indicated special studies should be
conducted, including x-ray examination
and both active and passive range of
motion testing, if not medically
contraindicated.
The examiner should be requested to
express an opinion as to the etiology of
the appellant's current back and neck
disorder, diagnosed as arthritis in 1987,
particularly as to whether it is
proximately due to or the result of motor
vehicle accidents that occurred in
service in February 1969 and July 1971.
The examiner must review a copy of the
REMAND and the appellant's claims folder
prior to the examination, with particular
attention given to the November 1987
Arizona Department of Corrections medical
opinion and the statements of C.E.R.,
D.C., dated in October 1990 and May 1991,
attributing the appellant's current spine
disorder to whiplash from a February 1969
motor vehicle accident.
The examiner's report should also include
a complete rationale, with supporting
authority or investigation, for all
conclusions reached.
2. Following completion of the foregoing,
the RO must review the claims folder and
ensure that all of the foregoing development
actions have been conducted and completed in
full. If any development is incomplete,
appropriate corrective action is to be
implemented. Specific attention is directed
to the examination report. If the
examination report does not include adequate
responses to the specific opinions requested,
the report must be returned to the examiner
for corrective action. 38 C.F.R. § 4.2
(1994) ("if the [examination] report does not
contain sufficient detail, it is incumbent
upon the rating board to return the report as
inadequate for evaluation purposes."). Green
v. Derwinski, 1 Vet.App. 121, 124 (1991);
Abernathy v. Principi, 3 Vet.App. 461, 464
(1992); and Ardison v. Brown, 6 Vet.App. 405,
407 (1994).
After the above requested actions have been completed, the RO
should review the appellant's claim with regard to the
additional evidence obtained. If the benefit sought on
appeal remains denied, a supplemental statement of the case
should be furnished to the appellant and his representative.
They should be afforded a reasonable period of time to
respond. Thereafter, the case should be returned to the
Board for further appellate consideration.
The purpose of this REMAND is to obtain additional medical
evidence and to ensure that the appellant receives his
procedural due process rights. No opinion, either legal or
factual, is intimated as to the merits of the appellant's
claim by this REMAND. He is not required to undertake any
additional action until he receives further notification from
VA.
JACK W. BLASINGAME
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(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(:)
(1995).
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