Citation Nr: 1338533 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 07-35 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for headaches. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to December 1968 and from May 1, 1992, to May 9, 1992. He also served in the California Army National Guard (ARNG) from February 1976 to January 1980 and August 1983 to August 2001. Pertinent to this case, an ARNG detailed points summary shows he served on inactive duty for training (INACDUTRA) on May 21, 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Oakland, California Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO denied claims for service connection for degenerative joint disease of the back and migraine headaches. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in October 2010. A copy of the transcript is associated with the claims file. In July 2012, the Board most recently remanded the Veteran's claim for further development. The case has since been returned to the Board for adjudication. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board finds the opinions contained in the July 2012 VA examination report are inadequate. In its remand, the Board specifically requested that the VA examiner opine whether the Veteran's claimed neck disability and headaches had their clinical onset in service or increased in severity during INACDUTRA. The examiner only gave opinions with respect to whether the Veteran's neck and headache disabilities had their onset during service. The Board is obligated by law to ensure that the Agency of Original Jurisdiction (AOJ) complies with its directives; 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. Stegall v. West, 11 Vet. App. 268 (1998). As such the Veteran's claim must be remanded again to obtain a clarification opinion from the July 2012 VA examiner as to the issues above. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to the July 2012 VA examiner, if available, for a supplemental opinion regarding the claimed cervical spine disability. If the July 2012 VA examiner is not available, forward the claims file to an appropriate substitute. The claims file, including any pertinent evidence contained in electronic format should be forwarded to the examiner. A copy of this remand, as well as the factual background laid out in the July 2012 remand, must be made available to the examiner in conjunction with the examination. It is left to the discretion of the examiner whether to reexamine the Veteran. The examiner should express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disability had its clinical onset in service or increased in severity during INACDUTRA. The examiner should specifically reference any relevant private, service treatment, and VA records used in reaching his/her conclusion. 2. Forward the Veteran's claims file to the July 2012 VA examiner, if available, for a supplemental opinion regarding the claimed headaches. If the July 2012 VA examiner is not available, forward the claims file to an appropriate substitute. The claims file, including any pertinent evidence contained in electronic format should be forwarded to the examiner. A copy of this remand, as well as the factual background laid out in the July 2012 remand, must be made available to the examiner in conjunction with the examination. For any headache disability diagnosed on examination, the examiner should express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disability had its clinical onset in service or increased in severity during INACDUTRA. The examiner should specifically reference any relevant private, service treatment, and VA records used in reaching his/her conclusion. 3. Re-adjudicate the claims for service connection for headaches and a cervical spine disability. If the decision remains in any way adverse to the Veteran, provide a supplemental statement of the case (SSOC) to the Veteran and his representative. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal. An appropriate period of time should be allowed for response. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he 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). _________________________________________________ C. TRUEBA 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).