Citation Nr: 1338565 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-16 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a neck disorder, to include as secondary to a service-connected shoulder disability. 2. Entitlement to service connection for a back disorder, to include as secondary to a service-connected shoulder disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from February 1984 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). A hearing was held on July 27, 2012, by means of video conferencing equipment with the Veteran in Chicago, Illinois, before the undersigned, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. A review of the Virtual VA paperless claims processing system reveals VA treatment records dated from 2007 to 2012. Other documents are either duplicative of the evidence of record or are not pertinent to the present appeal. The Veterans Benefits Management System does not include any documents regarding this appeal. 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 This appeal must be remanded for compliance with a March 2013 Board remand and to obtain adequate etiological opinions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that where VA provides the veteran with an examination in a service connection claim, the examination must be adequate). The 2013 remand requested that a VA examination be conducted and several opinions be provided. The Board requested that the examiner provide the following opinions: whether all currently diagnosed neck and back disorders began in service or were related to service, including an April 1986 accident, and whether the disorders were caused and/or aggravated by a service-connected shoulder disability. The examiner was requested to consider the Veteran's and his wife's lay statements indicating persistent neck pain since 1986. Regarding direct service connection, the examiner provided negative nexus opinions. The rationale was that the reported onset of the back symptoms post dated service and did not involve any apparent or known trauma or injury, there was no mention of any back symptoms or problems during service and the earliest evidence documenting back problems was in July 2007, which was too remote from service to be considered service-connected. As for the cervical spine, the examiner noted that the neck muscle strain had an uncomplicated resolution as there was no medical evidence of ongoing symptoms or problems during service, and that the first documented complaint of neck problems was in July 2007 which was too remote in time to be considered related to service "especially given the mild and resolved nature of the muscle strain during service." The examiner concluded that the far more likely etiology of the neck and back symptoms was the wear and tear effects of the years of physical labor performed by the Veteran. The examiner did not address the lay statements of ongoing pain in the rationale and appeared to require medical documentation of neck and back treatment. The examiner also purported to provide a secondary service connection for the neck, but the rationale given was only for direct service connection. No secondary service connection opinion was provided for the back disorder as related to the right shoulder sprain. Accordingly, remand is required to obtain adequate opinions that substantially comply with the 2013 Board remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Accordingly, the case is REMANDED for the following action: 1. If available, return the claims file to the examiner who rendered the April 2013 opinions regarding the neck disorder and back disorder. If this examiner is not available, the Veteran's claim folder should be reviewed by another appropriate examiner. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner. The examiner is asked to provide a rationale for the opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. The examiner must provide an opinion, in light of the examination findings and the service and post-service medical evidence of record, whether the Veteran's neck and back disorders are at least as likely as not (50 percent or greater probability) caused or aggravated by military service, to include the April 1986 accident. The examiner must address in the supporting rationale, the lay statements of ongoing neck pain since that accident and whether that fact changes the prior determination that any neck strain resolved during service. The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected right shoulder sprain caused or aggravated the neck and back disorders. The examiner must comment on the lay statements of record noting ongoing neck pain and on the significance of a VA treatment record in May 2011 that shows the Veteran's right shoulder arthralgia at times radiates to his neck. 2. If the benefits sought on appeal remain denied, issue the Veteran a supplemental statement of the case before the claims file is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ K. MILLIKAN 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).