Citation Nr: 1754318 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 10-26 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia 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 a bilateral hip disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from January 1994 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Roanoke, Virginia. These claims were previously before the Board in February 2017, at which time they were remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that the Veteran's claims for entitlement to service connection for a cervical spine disability, low back disability, and bilateral hip disability should be returned to the VA examiner who provided opinions for these conditions in April 2017 and May 2017, as the VA examiner did not fully comply with the directives provided in the February 2017 Board Remand. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. Id. at 271. Here, the Board had previously requested that the Veteran be provided with a VA examination for his bilateral hips, in which the examiner was directed to provide all pertinent diagnoses affecting the Veteran's hips; for each current disorder of the hips which is a congenital/developmental defect, opine as to whether it is at least as likely as not (50 percent probability or greater) that there was additional disability superimposed upon that defect during service and state whether or not the disability increased in severity during service and, if so, state whether any increase in disability was due to the natural progress of the disorder; and for each disorder of the hip that is not a congenital/developmental defect, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability had its onset in service or is otherwise related to service. The Veteran was then provided with a VA examination in April 2017 where he was diagnosed with bilateral hip pain. The examiner opined that the Veteran's bilateral hip pain was less likely than not related to military service. In support, the examiner provided that the veteran had 3 isolated incidents while in military where he suffered BL hip pain in 1997. X-ray of the hip joint at the time was negative. He reported in the evaluation that his hip popped almost his whole life. A congenital issue was stated as a possible diagnosis. The Veteran, on those occasions, was treated conservatively and recovered without residual effects. The episode was acute and transient without persistent or recurrent sequelae. The service treatment records are silent to any further problems with the hips. Current x-rays revealed a normal hip joint with a congenital defect of the sacrum. Although the VA examiner provided a current diagnosis for the Veteran's hips and a complete discussion of direct service connection, the inquiry related to the theory of a worsening of a pre-existing condition appears to be incomplete. Namely, it does not appear that the VA examiner adequately addressed the issue of whether there was additional disability superimposed upon the Veteran's identified defect during service and whether or not such disability increased in severity during service beyond its natural progression. This is particularly relevant in light of the fact that the Veteran did have a congenital defect that could affect the hips and that he did, on a number of occasions, have actual complaints and treatment in service for bilateral hip pain. As a conclusory opinion with regard to this issue would be dispositive on the overarching claim at hand, the Board finds that the claims file must be returned to the VA examiner so that an addendum opinion may be proffered which address such. In this regard, a complete rationale, to include citations to relevant medical literature and authority where appropriate, is requested. Additionally, the Board, in its 2017 Remand, requested that the Veteran's claims file be returned to the VA examiner who conducted the November 2015 VA spine examination for an addendum opinion. In this regard, it was noted that the 2015 VA examiner had failed to take the Veteran's lay descriptions of his duties into account or discussed them within the context of the opinions regarding a nexus of the claimed cervical spine disability and low back disability. It was further noted that complete rationales for all conclusions reached must be provided and take note of the fact that any negative opinion may not be based solely on the lack of documented evidence of injury in the service treatment records, i.e., the opinion must also consider the Veteran's history as stated at the examination and otherwise in the record, in accordance with the United States Court of Veterans Appeals (Court) opinion in Dalton v. Nicholson, 21 Vet. App. 23 (2007). Here, the 2015 VA examiner provided an addendum opinion in May 2017. However, it appears that, despite stating that he had considered the Veteran's duties, the VA examiner merely restated his previous opinion, again relying solely on the lack of documented evidence of injury in the service treatment records. The 2017 Remand specifically noted that the Veteran had indicated that the duties he performed in service resulted in his current neck and back problems. The Board observed that the Veteran's military occupational specialty was that of Maintenance Survival Equipment Journeyman. He stated that his job while in the service was that of working in all weather conditions (i.e. extreme cold, extreme heat to include the desert) crawling through small openings in aircraft, bending, stooping and kneeling for long periods of time in small areas of aircrafts, and lying on his back within an aircraft to install equipment. As such, the VA examiner was provided with specific descriptions of duties performed by the Veteran during service. However, despite being directed by the Board to provide complete rationales and discussions of this evidence, the VA examiner merely mentioned the fact of the Veteran having performed duty in service without specifically talking about what those duties were or why they could or could not serve as sufficient evidence of the onset of the Veteran's current disabilities. As such, the Board finds that the Veteran's claims file should again be returned to the 2015 VA examiner for an additional addendum opinion in which he actually reviews, considers, and discusses the Veteran's duty descriptions in explicit detail while providing a complete rationale with citations to relevant medical literature and authority where appropriate as they apply to the particulars of the Veteran's case. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding treatment records related to the Veteran's cervical spine, low back, and bilateral hip disabilities. 2. Thereafter, return the claims file to the VA physician who performed the Veteran's April 2017 bilateral hip examination for a supplemental opinion (or other appropriate examiner if the April 2017 examiner is unavailable). The examiner is specifically requested for each current disorder of the hips which is a congenital/developmental defect, to opine as to whether it is at least as likely as not (50 percent probability or greater) that there was additional disability superimposed upon that defect during service. This opinion should consider all pertinent evidence. Also state whether or not the disability increased in severity during service. If so, state whether any increase in disability was due to the natural progress of the disorder. A complete rationale for all opinions must be provided. 3. Additionally, return the claims file to the VA physician who performed the Veteran's November 2015 cervical and lumbar spine examinations for a supplemental opinion (or other appropriate examiner if the November 2015 examiner is not available). The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current cervical or lumbar spine disability is related to active service, to include any duties which the Veteran performed in service. The examiner must provide a comprehensive report including complete rationales for all conclusions reached, and take note of the fact that any negative opinion may not be based solely on the lack of documented evidence of injury in the service treatment records, i.e., the opinion must also consider the Veteran's history as stated at the examination and otherwise in the record. 4. Thereafter, readjudicate the remaining issues on appeal. If any benefit sought on appeal remains denied, furnish the appellant and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and affords them the appropriate time period for response before the claims folder is returned to the Board for further appellate consideration. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).