Citation Nr: 1616144 Decision Date: 04/21/16 Archive Date: 05/04/16 DOCKET NO. 09-26 945 ) 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 a low back disability. 3. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from October 1972 to May 1973 with various subsequent periods of ACDUTRA. These matters come before the Board of Veterans' Appeals (Board) on appeal from the December 2007 and June 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board denied the service connection claims for cervical spine, low back and headache disabilities in August 2014. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2015 Joint Motion for Remand (JMR), the Court vacated the Board's decision and remanded the matter to the Board for readjudication. The issues were previously remanded most recently by the Board in November 2015 to schedule the appellant for a Board videoconference hearing. The appellant testified at a videoconference hearing in front of the undersigned Veteran's Law Judge (VLJ) in February 2016 and a transcript of the hearing is associated with the claims file. The issues have since returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Appellant if further action is required. REMAND The appellant asserts entitlement to service connection for a low back, cervical spine and headache condition. Specifically, he contends that the aforementioned conditions were caused due to duties as an airplane mechanic during periods of ACDUTRA. Over a three year period, he continually hit his neck as he exited a submarine tracker aircraft, which felt like whiplash and knocked him out a few times. He felt an immediate headache and/or neck pain after. In addition, he asserts low back pain was caused by large scale mechanic work which required heavy lifting of tools, machinery and parts. He essentially contends that conditions onset in-service and continued since. As explained in the Introduction, in a June 2015 JMR, the Court vacated the Board's decision and remanded the case for further development and adjudication. The Court essentially concluded that a June 2014 VA examination relied upon by the Board in the August 2014 decision was inadequate. Specifically, the 2014 negative opinion between the appellant's low back and cervical spine condition and service did not provide a full rationale because the opinion was couched in general terms in a catchall list and provided no analysis to connect data noted and the conclusion that the appellant's disabilities were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The Court also found that the appellant's headache claim was inextricably intertwined with his claim for service connection for a cervical spine disability, and remand was required as well. As such, the Board finds updated VA examinations and opinions must be provided to address the etiology of the appellant's conditions. In light of the concerns raised by the Court, the Board finds that further VA examination is necessary to clarify whether the appellant has low back, cervical spine and/or headache condition, as a result of his military service. Accordingly, the case is REMANDED for the following action: 1. After any development deemed necessary is completed, the AOJ should afford the appellant an appropriate VA examination to ascertain the nature and etiology of any low back, neck or headache condition and its relationship to service. The appellant's claims file (including this remand) must be reviewed by the examiner. Following review of the claims file and examination of the appellant, the examiner should opine as to whether it at least as likely as not (a 50 percent or better probability) that the appellant's low back, neck and/or headache disabilities were related to ACDUTRA periods. In providing the above opinion, the VA examiner is to consider the appellant's lay statements regarding his reported injuries and onset of pain while on ACDUTRA and the significance, if any, of his work related low back injury reported from February 6, 1976. The examiner(s) must provide a discussion of the rationale for all opinions rendered with consideration of the pertinent medical and lay evidence of record. 2. Then, adjudicate the issues on appeal. If any benefit sought on appeal remains denied, furnish the appellant and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. The appellant 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 2014). _________________________________________________ MICHAEL LANE 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).