Citation Nr: 1746982 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 12-27 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a cervical, thoracic, and/or lumbar spine disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a Travel Board Hearing before the undersigned Veterans Law Judge in April 2015. A transcript of that hearing has been associated with the claims file. These matters were remanded by the Board in June 2015 for further development and have since been returned to the Board for appellate review. The appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system and Legacy Content Manager (LCM). LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Remand is required to obtain compliance with the prior Board remand. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. A December 2009 VA spine examination and opinion were provided. The examiner provided negative nexus opinions. The June 2015 Board remand found that the December 2009 VA spine opinion was inadequate because the examiner did not fully address a post-service April 2009 motor vehicle accident and ignored the Veteran's lay statements of continuous symptoms post-service discharge. The examiner did note a compression fracture but stated to attempt to opine whether or not this compression fracture was present in the military would be resorting to mere speculation. The examiner did not address why speculation was required. In addition, the examiner did not address the lumbar spine. Thus, the Board requested a new examination and opinions that more clearly addressed the evidence of record. An August 2015 VA examination was provided. The 2015 VA examiner, however, merely quoted the December 2009 examiner's opinion and stated that he concurred with this opinion without adding explanation for the deficiencies in the December 2009 opinion or addressing the directives from the June 2015 Board remand. Thus, remand for a new examination and opinion is required. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment from July 2015 onward. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his spine disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide all diagnoses of the cervical, thoracic, and lumbar spines. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (a 50 percent or greater probability) that each diagnosed cervical, thoracic, and lumbar spine disorder had onset in, or is otherwise caused by, the Veteran's active service. Third, the examiner must address whether any cervical, thoracic, and/or lumbar spine disorder clearly and unmistakably pre-existed the Veteran's service, including a gunshot wound. If so, the examiner must opine whether the preexisting disorder clearly and unmistakably was not aggravated during active service. In answering the questions, the examiner must specifically address the following: 1) the Veteran's competent and credible lay statements regarding continuous symptoms since service discharge; 2) the multiple service records noting lumbar spine symptoms after a November 1969 car accident; 3) the Veteran's pre-service gunshot wound; 4) the 2007 treatment notes by VA Dr. R.A.F. associated with the claims file July 2015 regarding cervical and lumbar spine symptoms; 5) the April 2009 and May 2009 VA treatment notes documenting a motor vehicle accident and resulting symptoms; and 6) the December 2009 and August 2015 VA examinations. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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. 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). _________________________________________________ K. MILLIKAN 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).