Citation Nr: 1614795 Decision Date: 04/12/16 Archive Date: 04/26/16 DOCKET NO. 08-09 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a neck disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E.I. Velez, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to service connection for a back and neck condition and for a stomach condition. The case has since been transferred to the Montgomery, Alabama VARO. In June 2011, the Veteran testified before the Board at a hearing held via videoconference. The Board subsequently remanded this case in October 2011 and then again in September 2014. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims ("the Court") held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. In a Board remand of September 2014 the RO was requested obtain the VA outpatient treatment records from the VA facilities in the Boston area (e.g., Jamaica Plain, West Roxbury) and Pensacola. A review of the claim file shows there is no evidence that these records were obtained or requested. Therefore, there has not been full compliance with the Board's September 2014 remand and the claim must once again be remanded so the outstanding treatment records can be obtained. Additionally, in the September 2014 remand the Board expressed concern with the November 2011 VA examination opinions. The Board noted that as to the back, the opinion is confusing: the examiner noted lumbar strain that on the one hand was resolved with no objective residual but also at least as likely as not related to service, as well as degenerative joint disease of the lumbar spine that was not related to service. It was noted it is unclear when the lumbar strain resolved, and further clarification would be helpful in this regard. Similarly, the VA examiner found the neck disorder to be unrelated to service because of the lack of in-service documentation and the lapse of time between service and a diagnosis, but the probative value of this opinion is called into question in light of the Veteran's report of post-service treatment at the West Roxbury VA facility. A further opinion is needed once sufficient efforts are made to obtain the West Roxbury VA records. A new VA medical opinion was obtained in February 2015. However, upon review of the opinions provided, the Board finds that the opinions continue to be inadequate. In regards to the cervical spine, as noted above, the treatment records from the West Roxbury VA facility have not been obtained and there is no indication that the records were requested and are unavailable. Therefore, as with the November 2011 VA opinion, the probative value of the opinion is called into question. As to the lumbar spine, the February 2015 examiner once again provided a lumbar strain diagnosis which is related to an injury in service, but did not state when said condition had resolved. While the examiner noted lumbar strain was in service, it is imperative for the proper adjudication of this issue to know if the lumbar strain diagnosis has been in effect at any time during the appeal period. The Board had requested that all lumbar spine diagnoses since 2006 be identified. The opinion provided is unclear as to whether lumbar strain existed at any point from 2006 to the present. Accordingly, a clarification opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Requests should be made for all records since service from VA facilities in the Boston area (e.g., Jamaica Plain, West Roxbury) and Pensacola. All records received by the RO must be added to the claims file. All efforts to obtain the outstanding records should be clearly documented in the claim file. If such records are unavailable, this fact must be documented in the claims file. 2. After the above development has been completed, the claim file should be returned to the examiner who conducted the February 2015 VA examination for a clarification opinion. The examiner must list all back and neck disorders diagnosed since receipt of the September 2006 claim (even if now resolved). Specifically, the examiner must state whether lumbar strain has been present at any time since September 2006. As to the cervical spine, the examiner must review any records associated with the claim file as a result of this remand and state whether, after a review of those records, there are any changes to the February 2015 opinion provided or whether the opinion remains unchanged. The examiner must specifically state all the newly considered treatment records, if any. All opinions must be supported by a detailed rationale in a typewritten report. 3. Then, the Veteran's claims must be readjudicated. If the determination of either claim remains unfavorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before the case is returned to the Board. The appellant 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). _________________________________________________ C. TRUEBA 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).