Citation Nr: 1300717 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-20 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a cervical spine disorder (originally claimed as a neck disorder). 3. Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active military service in the United States Army from November 1979 to April 1982. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. By that rating action, the RO, in part, denied the Veteran's claims of entitlement to service connection for low back and cervical spine disorders (originally claimed as a neck disorder) and sinusitis. The Veteran appealed the RO's October 2007 rating action to the Board. Jurisdiction of the appeal currently resides with the Boston, Massachusetts RO. The appeal was remanded by the Board for additional development in September 2011, and has been returned to the Board for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In December 2012 argument before the Board, the Veteran's representative asserts that additional development is necessary as the January 2012 VA examination report is inadequate as to the Veteran's claims because the examiner did not fully address all relevant and favorable evidence in the service treatment records (STRs). The Board agrees. Specifically, the representative notes that the etiology opinions did not note that the STRs included treatment for right trapezius spasm in September 1981, nasal congestion and purulent discharge of one-year duration in February 1981, history of low back pain in July 1980, pain in the neck after hitting his head against his helmet jumping in a foxhole in March 1981, upper respiratory congestion and treatment for cold symptoms and sinus congestion in January and February 1980. Instead, the examiner indicated that 'marked' documents were reviewed. A review of the examination report reflects that, as to the lumbar spine condition, the examiner noted this diagnosis had been present 'since the 1980's'. As to incidences in service, she noted an undocumented report that the Veteran fell off the back of a truck, as well as a documented fall down metal steps in May 1980. The examiner noted that she had reviewed all the marked documents in the Veteran's c-file, and that she found it less likely than not that a current lumbar spine disability resulted from the fall in the military. The rationale was that the exit physical was normal and he denied back complaints. It was felt that a post-service motor vehicle accident could have caused the neck injury. A review of the examination report reflects that, as to the cervical spine condition, the examiner noted this diagnosis had been present since 1981 to 1982. As to incidences in service, she only noted the aforementioned fall down the steps. The examiner again noted that she had reviewed all marked documents in the Veteran's c-file, and that she found it less likely than not that the cervical disability resulted from the fall in the military. The rationale was again that the exit physical was normal and he denied neck complaints. It was felt that the post-service motor vehicle accident could have caused the neck injury. Finally, it was noted that there was no information regarding his neck condition in the c-file. Clearly, the examiner failed to discuss or indicate that she considered the in-service treatment for the neck noted above. Moreover, as to both the cervical and lumbar spine claims, she did not indicate that she reviewed the claims folder as specifically required by the remand, but rather indicated that the 'marked' documents were reviewed. A review of the examination report reflects that, as to the sinusitis condition, the examiner noted that the Veteran had a diagnosis of sinusitis also dating from 1981-1982. As to in-service episodes, it was noted that the Veteran had frequent sinus infections while stationed in Alabama. She observed that the Veteran is prone to sinus infection and now treats with over the counter medication. The examiner noted that she had reviewed all marked documents in the Veteran's c-file, and that she found it less likely than not that the sinusitis was related to service. The rationale was that the exit physical was normal and he denied sinus issues. The examiner stated that he clearly has a chronic history of sinus infections but no link to his military service. The examiner provided scant rationale as to why she opined that any current sinus-related disability was not related to the multiple episodes of sinus problems in service. Again, she did not indicate that she reviewed the claims folder as required by the remand, but rather indicated that the 'marked' documents were reviewed. The Board notes that once VA undertakes the effort to provide an examination when developing a service connection claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, the Board has concluded that the development conducted does not adequately comply with the directives of the September 2011 remand. The United States Court of Appeals for Veterans Claims (Court) has held that RO compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates another remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). While the representative urges that an entirely new medical review be conducted, the Board finds that the file should be returned to the examiner who prepared the original examination report for the preparation of an addendum to address the above-noted inadequacies. 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) (2012). Expedited handling is requested.) 1. The Veteran's claims files should be forwarded to the VA examiner who performed the January 2012 VA examination for a complete review of the claims files and preparation of an addendum opinion. Based on a review of the record, the examiner should provide an addendum opinion as to whether there is a 50 percent or better probability that (a) any currently present low back and cervical spine disorders (originally claimed as a neck disorder) are etiologically related to the Veteran's period of active military service (November 1979 to April 1982) or had their onset therein or within the initial post-service year; (b) any currently present sinusitis is etiologically related to the Veteran's period of active military service (November 1979 to April 1982) or had its onset therein or within the initial post-service year. The supporting rationale for all opinions expressed must be provided. The examiner should specifically state whether the opinions are based upon a review of the entire claims file. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be expressed without resort to speculation, the physician should so indicate and discuss why an opinion is not possible. 2. If the January 2012 VA examiner is not available, the claims files should be provided to and reviewed by another examiner with sufficient expertise to provide the required opinions with the supporting rationale. Another VA examination of the Veteran should only be performed if deemed necessary by the person providing the opinions. 3. The RO or the AMC should undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the Veteran's claims on appeal based on a de novo review of the record. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative, and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action unless he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. 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.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).