Citation Nr: 1604570 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 10-07 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an esophagus disability, to include as secondary to a cervical spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from February 1984 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Cleveland, Ohio, regional office (RO) of the Department of Veterans Affairs (VA). This appeal was remanded by the Board in August 2013 for additional development. The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The August 2013 remand noted that a September 2008 VA examiner recommended that the Veteran undergo three different diagnostic studies before a determination was made as to whether claimed esophagus symptoms were related to the cervical spine surgery. This examiner opined that if all requested diagnostic studies were negative, the current esophagus symptoms should be considered likely due to the cervical spine surgery. Although two of the recommended studies were completed, the recommended reassessment of the cervical spine with imaging study was not. The August 2013 remand instructed that the Veteran should undergo the diagnostic testing recommended by the September 2008 examiner to include cervical spine imaging. Afterwards, the claims folder was to be returned to a November 2009 VA examiner who had provided a negative opinion regarding the relationship between the Veteran's service connected cervical spine disability and his claimed esophagus disability to obtain an opinion in light of the new imaging study. This examiner was to respond to the September 2008 VA examiner's opinion that, if all requested diagnostic studies were negative, then the current esophagus symptoms should be considered likely due to the cervical spine surgery. He was also to respond to the Veteran's assertion that he was informed by his surgeon that a certain amount of dysphagia would be expected due to his cervical spine fusion surgery, that his fusion surgery was atypical or more severe than most, and that residuals related to gastroesophageal reflux disease (GERD) and esophagitis have actually healed and, therefore, are not causing his current esophagus symptoms. Finally, the examiner was to provide an opinion on direct causation; he was to state whether it was as likely as not that a disability of the esophagus had its onset during service. The claims file was returned to the November 2009 examiner who then provided another negative opinion on secondary service connection in September 2013. The report states that the opinion was based entirely on record review. The opinion does not mention any cervical spine imaging, and there is no indication that such a study was conducted. The Veteran's representative notes that the Veteran's address changed about the time of this examination, so it is unclear if he was ever scheduled for imaging studies or, if so, if he received the notice letter. The September 2013 addendum does not mention the September 2008 examiner's opinion regarding the interpretation of negative diagnostic studies. It also fails to address the Veteran's contentions regarding an atypical surgery. Finally, the examiner did not provide the opinion on direct causation. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court 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). Accordingly, the case is REMANDED for the following action: 1. The claims folder should be returned to the examiner who authored the November 2009 and September 2013 opinions. The examiner should provide the following addendum to his previous opinions: a) Is it as likely as not that the Veteran's disability of the esophagus was incurred during or due to active service? If the response to (a) is negative, then the following action must also be completed: The examiner should state whether cervical spine imaging is medically indicated in order to provide an accurate opinion as to whether there is a causal relationship between the claimed esophagus disability and service connected cervical spine disability. If the examiner determines that imaging is required, the Veteran should be scheduled for an appropriate imaging study, unless it is determined that the procedure would be invasive. If the examiner determines that imaging is not required, or that it would be invasive, the examiner should provide reasons. Afterwards, the examiner must provide the following addendum to his previous opinions: b) If an imaging study was conducted, do the findings change the previous opinion that the Veteran's esophagus disability was not caused or aggravated by his cervical spine disability? c) Respond to the September 2008 VA examiner's opinion that, if all requested diagnostic studies are negative, the current esophagus symptoms should be considered likely due to the cervical spine surgery. State whether or not you are in agreement with this opinion. d) Respond to the Veteran's assertion that he was informed by his surgeon that a certain amount of dysphagia would be expected due to his cervical spine fusion surgery, that his fusion surgery was atypical or more severe than most, and that residuals related to gastroesophageal reflux disease and esophagitis have actually healed and, therefore, are not causing his current esophagus symptoms. The reasons for all opinions should be provided. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. If the November 2009/September 2013 VA examiner is unavailable, the case should be referred to another qualified physician to obtain the requested opinions. If further examination is deemed necessary by an examiner, this should be conducted. 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. 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 2014). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).