Citation Nr: 1315847 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-24 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss. 4. Entitlement to service connection for disability of the cervical spine. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2000 to November 2003. This matter was last before the Board of Veterans' Appeals (Board) in October 2012 on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The RO denied the Veteran's claims and, as noted by the Board in October 2012, he timely appealed the denials. In October 2010, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. As discussed below, the Board finds that the AOJ substantially complied with the remand orders with respect to the claim decided herein; no further action is necessary in specific regard to that claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are duplicative of the evidence in the paper claims file. The issue of entitlement to service connection for a right knee disability is herein decided. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The Veteran did not report for a VA examination scheduled for January 3, 2013 in regard to his claim for a right knee disability. 3. No right knee disability is shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSION OF LAW A right knee disability was not incurred in, or aggravated by, the Veteran's active duty military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002& Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a March 2007 letter, sent prior to the initial unfavorable rating decision, advised the Veteran of the evidence and information necessary to substantiate claims for service connection as well as his and VA's respective responsibilities in obtaining such evidence and information. The letter also informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, active duty and post-service VA treatment records have been obtained and considered. However, the Board notes that, there is no separation examination included in the Veteran's service records. Further, the claims file does not reflect any pertinent VA treatment records generated after March 2008. Although these records are missing from the claims file, there is documentation that the AOJ has made all appropriate attempts to recover them. In specific regard to any missing records of treatment or examination conducted during the Veteran's active duty service, the AOJ made multiple inquiries to confirm that the no additional records were available. The AOJ informed the Veteran in a May 2007 letter of alternative sources of information that he could submit to substantiate his claims, issued a July 2007 formal finding of unavailability, and advised the Veteran a July 2007 letter of the efforts undertaken to recover any outstanding records. 38 C.F.R. § 3.159 (d). In regard to records of pertinent VA treatment generated after March 2008, the claims file reflects that VA staff searched for additional records in October 2012, but found none. When, as here, service records are lost or missing through no fault of the Veteran, VA has a heightened duty to consider the applicability of the benefit of the doubt rule and to assist a claimant in developing a claim. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board finds that, based on the above, VA has met this heightened duty. Further, the Veteran has not indicated that he possesses any copies of any outstanding records and neither the Veteran nor his representative have identified any additional records pertinent to the claim herein decided. Specifically, on March 2013 form to VA requesting expedited processing of his appeal, the Veteran indicated that he did not have any additional evidence. Therefore, the Board finds that VA has satisfied its duty to assist. The Board is mindful that the Veteran has not undergone a VA examination in regard to his claim for service connection for a right knee disability. However, it notes that he was afforded the opportunity - such examination was scheduled to occur in January 2013, but the Veteran did not appear. Specifically, records within the claims file reflect that the Veteran informed the appropriate VA Medical Center (VAMC) that he would not appear for the examination because he was withdrawing his appeal. Later in January 2013, VA mailed the Veteran a letter asking him to clarify his wishes in regard to his appeal. The letter specifically stated that "if we do not hear from you within the requested [30 day] time frame, then we will continue to process your appeal based on the evidence of record." The Veteran did not respond to the letter. Although the Veteran's authorized representative contended in an April 2013 brief that the Veteran had not expressed a desire to withdraw his appeal, the brief did not provide any explanation for his lack of examination attendance. Pursuant to 38 C.F.R. § 3.655 (b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Although 38 C.F.R. § 3.655 (a) clarifies that section (38 C.F.R. § 3.655 (b)) applies when a claimant fails to appear without good cause, the Veteran has not informed VA of any such 'good cause,' has not responded to VA's inquiry into to his wishes, and has been informed that his claim would be rated on the evidence of record if he did not respond to VA. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App.517, 522 (1996); Zarycki v. Brown, 6 Vet. App.91, 100 (1993); Wood v. Derwinski, 1 Vet. App.190, 193 (1991). As noted above, the Board remanded this case in October 2012 in order for the AOJ to ensure that all identified and available records were associated with the claims file and to afford him an examination. The record reflects that VA has made appropriate efforts to obtain outstanding records and scheduled the Veteran for a January 2013 examination. Although no additional VA treatment records were available and the Veteran did not appear to the scheduled examination, the AOJ did substantially comply with the remand directives. See D'Aries, supra. Further, the AOJ issued a February 2013 supplemental statement of the case reflecting readjudication of the claim after the remand. Therefore, the Board finds that no further action is necessary in regard to the October 2012 remand directives. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Under relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110 , 1131. Generally, to support a determination of service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Generally, when determining service connection, all theories of entitlement - direct and secondary - must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). However, here the Veteran is service-connected only for post-traumatic stress disorder (PTSD) and he has not claimed, and the claims file does not otherwise indicate, that he has any knee disability secondary to or aggravated by PTSD - service connection cannot be awarded on a secondary basis as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of service as shown by the service record, the official history of each organization in which such Veteran served, service treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). However, although all evidence associated with the claims file has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the February 2000 report of the Veteran's enlistment examination reflects that his lower extremities were evaluated as normal. He denied any "'trick' or locked knee," lameness, "bone, joint or other deformity," and "arthritis, rheumatism, or bursitis" on a contemporaneous self report of medical history. In July 2003, he reported for treatment of back and neck symptoms and also complained of right knee pain that he had experienced for approximately a week and a half. He informed the treating clinician that he "missed a step" when walking down some stairs and subsequently experienced pain with walking. No diagnosis was rendered in regard to the knee, but he was prescribed motrin for pain. In an August 2003 post-deployment questionnaire, the Veteran indicated that he was concerned about having twisted his knee as well experiencing neck pain. However, although he reported recurrent neck pain, but he did not indicate any current knee problems. After service, the Veteran submitted a February 2007 claim for benefits. He stated on the claims form that he "hyperextended" his knee in service after being "forced to jump from an elevated level. He reported "problems ever since." The Veteran was initially evaluated by VA in February 2007 and reported a past medical history of right knee degenerative joint disorder. The examining clinician observed that the Veteran reported right knee pain, but noted that the knee was negative for stiffness; the clinician diagnosed knee arthralgia. The Board observes that "arthralgia is pain in a joint." Mykles v. Brown, 7 Vet. App. 372, 373 (1995). In April 2008, the Veteran was afforded a VA examination in regard to a claimed neck disability. Although his knee was not specifically examined, the 2008 examiner observed that the Veteran walked freely and briskly without an antalgic gait, used no orthopedic assistive devices to ambulate, and attested that, except when experiencing a flare of neck pain, he was able to complete all routine yard, household, and vehicle maintenance or repair tasks. The Veteran wrote to VA in March 2009. He reported that his knee "gets very stiff during colder weather," but he had learned to use an ace bandage to "keep the heat in" in order to "get through the day without much pain." In November 2012, the Veteran again wrote to VA in regard to his knee symptoms. He stated that the "knee issue seems to come and go," but "the more active [he] is, obviously the more the knee hurts." He stated that he had learned his physical limits. Although the Veteran also stated that he would "be glad to visit another doctor about it," he subsequently did not appear for a scheduled January 2013 examination. As noted above, since the Veteran has not provided good cause for missing the January 2013 VA examination, his claim will be rated on the evidence of record. 38 C.F.R. § 3.655 (b). The Board notes that the Veteran contends on his own behalf that he has experienced a right knee disability since his active duty service - i.e. that he has experience continuity of symptomatology. Although arthritis is recognized as chronic under 38 C.F.R. § 3.309(a), the Board finds the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology cannot be applied favorably to the Veteran's claim. A February 2007 VA treatment note lists right knee degenerative joint disease as part of the Veteran's past medical history, but that diagnosis appears to be listed as the result of self-report by the Veteran. Medical history such as that - which has been provided by a veteran and recorded by physician without additional enhancement or analysis - is not competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (the fact that a veteran's history is recorded in medical records does not transform it into a competent medical opinion). After examining the Veteran, that clinician determined that right knee arthralgia - pain - was an appropriate diagnosis. Further, a layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears) already mentioned, etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). Although the Veteran has attested to, and is competent to report, right knee pain, the Board finds he is, as a lay person, not competent to diagnose degenerative joint disorder or arthritis. In this regard, the diagnosis of such disease involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Moreover, the diagnosis of arthritis requires x-ray findings, 38 C.F.R. § 4.71a, Diagnostic Code 5003, and there are no supportive x-ray results in the claims file. As such, the question of diagnosis, as well as the question of etiology, in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a) (1). Although the Veteran has reported experiencing knee pain since serving on active duty and informed the February 2007 VA clinician that he experienced degenerative joint disease, the claims file does not reflect medical diagnosis of any disability other than knee arthralgia, or pain. Pain alone does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The Board is mindful that the Court has held that functional loss caused by pain is akin to functional loss caused by physical disability (Mitchell v. Shinseki, 25 Vet. App. 32 (2011)) but here there is also no competent medical evidence of any such functional loss - the 2007 clinician noted no stiffness in the joint and the 2008 VA examiner observed a normal gait and noted that the Veteran did not indicate that his activity was impaired by anything except flares of neck pain. Moreover, although complaining of stiffness and pain, the Veteran has not attested to any specific functional impairment as the result of his right knee. The Board has considered the Veteran's lay statements that he has a right knee disability that is related to his military service. However, the Board finds that, as a lay person, he is not competent to render either diagnostic or etiological opinions. In this regard, the medical subject here concerns an internal physical process extending beyond an immediately observable cause-and-effect relationship so his lay opinion is nonprobative. See Jandreau, supra; see also Woehlaert, supra. Moreover, while the Veteran has alleged a continuity of symptomatology, the Board again notes that, as he has not been diagnosed with arthritis or other disease that is considered chronic within the meaning of VA regulations, service connection based on continuity of symptomatology is inapplicable. See Walker, supra. The Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right knee disorder. As such, the benefit-of-the-doubt doctrine is not applicable to this appealed issue, and the claim must be denied. 38 U.S.C.A. § 5107. [Continued on next page.] ORDER Service connection for a right knee disability is denied. REMAND The Board's review of the claims file reveals that further RO action in regard to the appeal is warranted, even though such will, regrettably, further delay an appellate decision. VA is required by the Veterans Claims Assistance Act of 2000 (VCAA) to assist claimants by gathering all pertinent records of VA treatment and all identified private treatment records. Although an October 2012 notation within the claims file indicates that no additional VA records were available at that time, as this case is being remanded, the RO/AMC must take appropriate steps to gather any subsequently generated VA treatment records and associate them with the claims file. The RO/AMC should also ask the Veteran whether he has received any private medical treatment pertinent to his claims that is not already associated with his file. Since the Veteran informed a VA clinician in November 2006 that he had received chiropractic treatment for his back, the RO/AMC should specifically inquire into the identity of that chiropractor. If the Veteran identifies any such evidence, assist him in obtaining any available records. VA's duty to assist the Veteran can extend to non-treatment employment records when relevant. In Spurgeon v. Brown, the Court specifically held that VA had a duty to advise the claimant of the potential relevance of employment records. 10 Vet. App. 194, 197-98 (1997); see also Cullin v. Shinseki, No. 12-1018, 2013 WL 1789296 (April 29, 2013) (nonprecendential) (indicating that VA has a duty to assist claimants in gathering pertinent employment records when the evidence suggests those records may reasonably help substantiate the claim). Here, the Veteran has specifically contended that he was initially diagnosed with hearing loss during an on-the-job hearing evaluation and that his claimed neck disability has interfered with his work (requiring him to miss work and rendering him unable to complete certain activities during flare-ups). As such, the RO/AMC must take appropriate steps to advise the Veteran of the potential relevance of these records and to assist him in gathering any relevant records from his employer. Although VA has assisted the Veteran by affording him VA examinations in regard to his claimed neck disability and his claimed audiological disabilities, the Board finds that those examination results require clarification. Pursuant to 38 C.F.R. § 4.2, it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. In regard to the Veteran's claims for service connection for audiological disabilities, the Board observes that his service enlistment examination appears to indicate that he experienced hearing loss attributable to built-up cerumen which was resolved with lavage. An April 2008 VA audiology examiner determined that the Veteran did not have current hearing loss, as defined by VA regulation, and, as a result, opined that he did not have tinnitus secondary to hearing loss. In contrast, a December 2009 VA examiner determined that the Veteran did have a current hearing loss, but opined, based on the enlistment examination results, that hearing loss pre-existed active duty service. As the 2009 examiner did not discuss either the April 2008 VA examination report or the notation on the Veteran's enlistment examination report as to cerumen and lavage, it is not clear that she had knowledge of all pertinent case facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In regard to the claimed neck disability, an April 2008 VA examiner determined that, based on a concurrent examination, the Veteran did not have any such current disability. However, VA treatment notes dated November 2006 and February 2007 reflect that he experienced decreased range of motion of the neck as well as pain. Since the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319 (2007), and the examiner did not address whether or not the Veteran may have had a neck disability earlier in the appellate period that resolved prior to examination, the opinion is not adequate. Accordingly, the RO should return the claims file to the April 2008 neck examiner and to the December 2009 audiology examiner for addendum opinions. The RO should only arrange for further examination of the Veteran if either of those examiners are unavailable or deem it necessary to further examine the Veteran. Accordingly, the case is REMANDED for the following action: 1. Gather any outstanding VA treatment records generated from March 14, 2008 (NOTE that the claims file reflects that the Veteran is treated through the VA North Texas Healthcare System) and associate them with the claims file. If no such records are available, include documentation of the unavailability in the claims file. 2. Afford the Veteran an additional opportunity to submit any information that is not evidenced by the current record. Ask him to identify the chiropractor who treated his neck pain in 2006. Provide him with forms authorizing the release of any identified outstanding private treatment records. Make at least two (2) attempts to obtain records from any identified source. Any available records must be associated with the claims file. If any records are not available, inform the Veteran and request that he submit any copies in his possession. 3. Concurrently, inform the Veteran of the potential relevance of his employment records - specifically any employment records as to diagnosis of hearing loss or tinnitus or as to the existence of a neck disability. Provide him with forms authorizing the release of any such pertinent employment records. Make at least two (2) attempts to obtain records from any identified source. Any available records must be associated with the claims file. If any records are not available, inform the Veteran and request that he submit any copies in his possession. 4. After all records and/or responses have been received from each contacted entity and associated with the claims file, forward the Veteran's entire claims file, to include a copy of this REMAND, to the VA examiner who completed the December 2009 audiology examination. The examiner should review the claims file, with particular attention to any evidence newly associated with the claims file as a result of this remand. The examiner is asked to address the April 2008 audiology examination report as well as the notation on the Veteran's service enlistment examination indicating that hearing loss measured at that time may have resulted from cerumen build-up. Specifically, the examiner must provide a new opinion, with rationale, as to whether it is at least as likely as not that any current hearing loss and/or tinnitus began during, or resulted from any incident of, the Veteran's active duty service. Please comment on the findings made by Dr. T. T. Benke in the September 2009, and November 2012 reports. If the prior examiner is not available, or another examination is deemed warranted, arrange for the Veteran to undergo VA examination at an appropriate location to obtain the requested opinions. All examination findings (if any), along with a complete, clearly stated rationale for the conclusions reached, should be set forth in a printed (typewritten) report. 5. Subsequently, forward the Veteran's entire claims file, to include a copy of this REMAND, to the VA examiner who completed the April 2008 VA spine examination. The examiner should review the claims file, with particular attention to any evidence newly associated with the claims file as a result of this remand. The examiner is asked to address the November 2006 and February 2007 VA treatment notes reflecting that the Veteran experienced neck pain as well as decreased range of motion that was treated with muscle relaxers. Specifically, the examiner must provide a new opinion, with rationale, as to whether it is at least as likely as not that the Veteran experienced any neck disability AT ANY TIME DURING THE APPELLATE PERIOD, that began during, or resulted from any incident of, the his active duty service. If the prior examiner is not available, or another examination is deemed warranted, arrange for the Veteran to undergo VA examination at an appropriate location to obtain the requested opinions. All examination findings (if any), along with a complete, clearly stated rationale for the conclusions reached, should be set forth in a printed (typewritten) report. 6. Readjudicate the remanded claims. If the claims are not granted in full, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop the claims is both critical and appreciated. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs