Citation Nr: 1752087 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-26 745 ) 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 disorder, claimed as a neck disability. REPRESENTATION Appellant represented by: Adam G. Werner, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1975 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction has since been transferred to the St. Petersburg, Florida RO. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2014. A transcript of the hearing has been associated with the Veteran's claims file. A May 2014 Board decision, in part, denied the Veteran's claim for entitlement to service connection for a cervical spine disorder. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In a May 2016 memorandum decision, the Court, in part, set aside the Board's denial of entitlement to service connection a cervical spine disability and remanded the matter to the Board for readjudication. In compliance with the May 2016 Court memorandum decision the Board remanded the Veteran's appeal to the RO in May 2017 for additional development. As discussed below, the requested development was not substantially complied with and the claim is not ready for appellate review. See Stegall v. West, 11 Vet. App. 268 (1998). In June 2017 a request was submitted by the Veteran to expedite his appeal due to severe illness and financial hardship. The Board interprets this request as a motion to advance on the docket, which the Board grants based upon severe illness. Accordingly, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 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 Veteran if further action is required. REMAND The Veteran's claim was most recently before the Board in May 2017 at which time it was remanded to obtain a VA examination and opinion which addressed whether the Veteran's cervical spine disability was etiologically related to his active service. In response to the May 2017 Board remand the Veteran was provided with an August 2017 VA examination. The examiner noted diagnoses of cervical spine strain and degenerative arthritis of the spine. The examiner concluded that the Veteran's in-service neck injury was less likely than not etiologically related to his current cervical spine degenerative disc disease. The examiner explained a sprain improves over one to six weeks and would not result in degenerative disc disease because degenerative disc disease is age related. The examiner also noted a significant time lapse between the Veteran's in-service injury and diagnosis of degenerative disc disease with no continuous care of neck pain following active service. The Board finds the August 2017 VA opinion to be inadequate. The examiner noted a diagnosis of cervical spine degenerative disc disease and seemingly based his opinion on this diagnosis alone. The April 2010 VA examiner diagnosed the Veteran with cervical spine spondylosis following an imagining study. The Board notes the May 2016 Court memorandum decision found the April 2010 examiner's opinion inadequate but did not find the examination itself inadequate. However, the August 2017 examiner did not provide an opinion as to the Veteran's cervical spine spondylosis. Moreover, the examiner cited the lapse in time between the Veteran's in-service injury and the first documented instance of treatment for his diagnosis as support for his conclusion, however, the examiner did not address the Veteran's statement indicating he had on and off neck pain since his separation from active service but that he did not seek treatment because he did not think he could afford it. See March 2014 Board videoconference hearing. 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. Obtain and associate with the Veteran's claims file any and all outstanding VA treatment records. 2. After the completion of the above the AOJ must contact the VA examiner who examined the Veteran in August 2017 in connection with his claim for service-connection for a cervical spine disability and request an addendum opinion. The claims file should be made available to and reviewed by the examiner Based on the examination and review of the record, the examiner should offer an opinion as to whether it is at least as likely as not that any currently diagnosed cervical spine disability (to include cervical spine spondylosis and cervical spine degenerative disc disease) is etiologically related to the Veteran's active service. The examiner should consider and discuss as necessary the following: (i) The Veteran's service treatment records (STRs) to specifically include July 1975, December 1975, and November 1976 STRs noting multiple instances of complaints of and treatment for a neck sprain; (ii) The Veteran's lay statements indicating he injured his neck during his active service when timber fell on his head and neck, pushing him to the ground; (iii) The April 2010 VA examination noting a diagnosis of cervical spine spondylosis; and (iv) The Veteran's March 2014 Board videoconference hearing testimony that he had neck pain on and off since his separation from active service but that he did not seek treatment sooner because he did not think he could afford it. 3. The AOJ should then re-adjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his attorney an opportunity to respond. 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). _________________________________________________ M.E. LARKIN 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).