Citation Nr: 1320663 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 07-24 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the residuals of head trauma, to include a neurological disorder. 2. Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and sister ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied the claims at issue. In September 2009, the Veteran testified at a Travel Board hearing, a transcript of which is on file. The appeal is REMANDED. VA will notify the appellant if further action is required. REMAND Although VA examinations were conducted in May 2012, they were not conducted by a neurologist and orthopedist as instructed by the Board in its May 2012 remand. The record does not suggest that it was impossible to fulfill the Board's remand directives or that the chosen medical examiner had sufficient expertise to replace the requested neurologist and orthopedist. The Board errs as a matter of law when it fails to ensure substantial compliance with the remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002); Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the claims to include up-to-date VA treatment records. 2. Schedule the Veteran for a VA examination with a neurologist for the purpose of ascertaining whether he has any current residuals of head injury sustained in service. If a neurologist is not available, choose a medical professional with sufficient medical expertise with head injuries and indicate how the appointed medical professional has the appropriate expertise to conduct the examination. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must identify all conditions that are determined to be related to the reported in-service head injury. This should include consideration of whether the Veteran currently has a condition characterized by a cognitive deficit as a result of the reported head injury. The examiner should presume, for the purposes of the opinion, that the Veteran fell several feet from a helicopter in service, injuring his head/neck. The examiner must report the rationale for any opinion expressed, preferably with discussion of the prior opinions of record. If the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and explain why it is not feasible to provide a medical opinion. 3. Schedule the Veteran for a VA examination with an orthopedist pertaining to the claimed cervical spine disorder. If an orthopedist is not available, choose a medical professional with sufficient medical expertise and indicate how the appointed medical professional has the appropriate expertise to conduct the examination. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The VA examiner should indicate whether the diagnosed osteoarthritis of the cervical spine is at least as likely as not (50 percent likelihood or greater) directly related to the Veteran's military service. The examiner should presume, for the purposes of the opinion, that the Veteran fell several feet from a helicopter in service, injuring his head/neck. The examiner must provide the rationale for any opinion expressed, preferably with discussion of the prior opinions of record. If the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and explain why it is not feasible to provide a medical opinion. 4. The Veteran must be advised of the importance to reporting to the scheduled VA examinations, and of the possible adverse consequences, to include the denial of his claims, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examinations must be included in the claims folder, and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. Thereafter, readjudicate the claims on appeal based upon all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran 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. 2012). _________________________________________________ L. M. BARNARD Acting 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).