Citation Nr: 1634510 Decision Date: 09/01/16 Archive Date: 09/09/16 DOCKET NO. 09-02 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to chronic lumbar strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from November 1985 to November 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this claim in May 2010 and September 2011 for further development, and denied it in a June 2013 decision. This decision was subsequently vacated and the case remanded by a February 2015 memorandum decision of the United States Court of Appeals for Veterans Claims (Court). The Board then remanded the claim in June 2015 for further development in accordance with Court's remand directives. The Veteran testified at a hearing before the undersigned in May 2009. The Veteran and his spouse also testified at a hearing before a Decision Review Officer in October 2008. Transcripts of both hearings are of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND This claim must be remanded again to ensure proper compliance with the Board's prior remand instructions, as well as the directives of the Court in its February 2015 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand). In its June 2015 remand, the Board, in relevant part, instructed the RO to obtain a medical opinion on the issue of secondary service connection, in which the examiner was to address the issue of whether the Veteran's service-connected lumbar spine disability caused or aggravated his cervical spine disability, including due to overcompensation or other postural issues resulting from the lumbar spine disability. The medical opinion does not comply with this remand directive. Instead, the examiner stated in the August 2015 opinion and March 2016 addendum that there was no medical evidence that degenerative disease of the lumbar spine causes or aggravates cervical spine pathology, without discussing the issue of whether lumbar spine postural abnormalities may have caused the cervical spine disability or resulted in an increase in severity of such disability. See 38 C.F.R. § 3.310 (2016). With regard to aggravation, the examiner stated that ankylosis of the lumbar spine could impact cervical spine motion and "therefore cause pathology," but that there was no evidence of lumbar spine ankylosis in this case. The Board's instruction, however, was for the examiner to address whether disability of the lumbar spine such as due to postural abnormalities causes or aggravates disability of the cervical spine. Cf. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (defining a disability in the context of secondary service connection as "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Thus, the issue is not whether the lumbar spine degenerative disease itself causes or aggravates the disc disease of the cervical spine such as through some kind of spreading process, although this certainly is not excluded from consideration, but whether disability from the former such as due to postural abnormalities causes or aggravates the cervical spine pathology or any disability from the latter. Because the examiner did not address whether overcompensation or postural abnormalities caused or aggravated the cervical spine disability, as instructed by the Board, the opinion does not comply with its remand directives. Moreover, the examiner's explanation in support of the aggravation opinion in fact speaks to the issue of causation rather than aggravation. Specifically, the examiner stated that in the absence of ankylosis of the lumbar spine that could impact cervical spine motion and "therefore cause pathology," there was no aggravation. Such an explanation is applicable to the issue of causation, but does not address the issue of whether lumbar spine postural abnormalities resulted in an increase in severity of disability of the cervical spine, even if it did not initially cause the cervical spine pathology itself. Finally, with regard to the issue of direct service connection, the examiner did not address the Veteran's headaches that reportedly started in service and continued soon thereafter, as instructed by the Board in its June 2015 remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Return the claims file to the physician who examined the Veteran in August 2015 for a supplemental opinion on the issues discussed below. If an opinion cannot be obtained from that examiner within a reasonable time frame, a different clinician may render the opinion. The examiner must render opinions on each of the following issues: Direct service connection: Please comment on the Veteran's headaches that reportedly occurred during service and continued soon after separation in terms of whether it is at least as likely as not (50% probability or more) that his cervical spine disability results from disease or injury incurred in active service. A complete explanation must be provided. Secondary service connection: a. Causation: Whether it is at least as likely as not that the Veteran's service-connected lumbar spine disability caused his cervical spine disability due to "overcompensation" or other postural issues resulting from the lumbar spine disability. (In other words, even if degenerative disease of the lumbar spine is not found in itself to have caused cervical spine degenerative disease, the issue of whether there is a relationship via postural abnormalities must be addressed.) b. Aggravation: Whether it is at least as likely as not that the Veteran's service-connected lumbar spine disability aggravated his cervical spine disability, including due to overcompensation or postural issues, even if it did not directly cause it. "Aggravation" means an increase in severity of the disorder beyond any medically established baseline. The examiner must specifically address whether overcompensation or postural abnormalities resulting from the lumbar spine disability caused or aggravated the Veteran's cervical spine disability. Thus, even if there is no evidence that degenerative disease of the lumbar spine in itself causes or aggravates degenerative disease of the cervical spine, as stated in the March 2016 medical opinion, the examiner must opine on whether lumbar spine postural abnormalities affected the cervical spine such as to cause pathology or increase the severity of disability from pathology of the cervical spine. A complete explanation must be provided. 2. Then, review the claims file and ensure that all requested development actions have been completed in full. If the VA examination opinion does not adequately respond to the above remand directives, it must be returned to the examiner for corrective action. 3. Finally, after completing any other development that may be indicated, readjudicate the claim. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). _________________________________________________ P.M. DILORENZO 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) (2016).