Citation Nr: 1302220 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 09-47 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for headaches as secondary to the cervical spine disorder. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from September 1985 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was previously before the Board in April 2012 and remanded for additional development. The case has been returned to the Board for adjudication of the claim. In February 2012, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. As noted in the April 2012 remand, the issue of entitlement to service connection for ankylosing spondylosis has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 the April 2012 remand, the Board noted that the appellant had reported Reserve service and requested that the AOJ request the appellant's Reserve records. In an April 2012 letter, the VA Appeals Management Center (AMC) requested that the appellant provide information regarding his Reserve unit. In a response received in July 2012, the appellant provided a July 1991 form containing information regarding the appellant's Army Reserve unit following his discharge from active service. He also stated that he was then assigned to the 160th Military Police battalion, USAR, located in Tallahassee, Florida. In the supplemental statement of the case the AMC noted that "all pertinent records to include (unit's information, service medical records, and personnel records) were reviewed and considered." However, there is no indication that the AMC made an attempt to obtain the appellant's Reserve records, as requested by the Board in the April 2012 remand. Compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). As the AMC did not comply with the mandates of the April 2012 remand, and the Reserves records may be relevant to the appellant's claims, the claims must be remanded. Further, if any relevant Reserve records are obtained in accordance with this remand, the appellant's claims file should be referred to the examiner who conducted the March 2012 VA examination, or another relevant VA clinician, in order to obtain a new opinion as to nature and etiology of the appellant's cervical spine disorder and headache disorders. Accordingly, the case is REMANDED for the following action: 1. Request all relevant records from the appellant's Reserve service. If additional information is needed from the appellant, he should be so informed. If the records are not available, the appellant should be so informed. 2. If relevant records from the appellant's Reserve service are obtained, request that the March 2012 VA examiner or, if unavailable, an appropriate VA clinician, provide an opinion as to whether it is at least as likely as not that the appellant's cervical spine disorder had its onset in service or is causally related to service, to include due to parachute jumps conducted during Airborne school. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 3. Thereafter, readjudicate the appellant's claims. If the benefits sought on appeal remain denied. The appellant should be provided a supplemental statement of the case (supplemental statement of the case). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant 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.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ M. E. LARKIN 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) (2011).