Citation Nr: 1801326 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-22 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Veteran represented by: Patricia E. Roberts, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to May 1969. These matters come 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). The claims were remanded in February 2016. In July 2015, the Veteran and his wife testified at a hearing before the undersigned Veterans' Law Judge. A transcript of that hearing is associated with the record. REMAND The Board's review of the record reveals that further development is warranted before the claims on appeal are decided. Specifically, an additional medical opinion on the nature and etiology of the Veteran's neck and back disabilities that accounts for all relevant evidence of record is required. The February 2016 remand directed that a VA examination and medical opinion assess the nature and etiology of any current back and neck disabilities in light of his reported onset of low back and neck pain in service, medical evidence indicating a series of surgical procedures began in the 1980s, and an August 2015 opinion from Dr. C.V. that found in-service duties contributed to lumbar arthritis and characterized cervical spine stenosis as congenital. As discussed below, the Board finds the subsequent development was not adequate. The Board is obligated by law to ensure that the AOJ complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Initially, the Board finds the April 2016 medical opinion's conclusion that the neck and back disabilities were less likely than not solely due to mechanical wear in active service and most likely due to strong genetic disposition, natural age and mechanical wear, a 1989 motor vehicle accident, and a 1987 acute herniated nucleus pulposus (for the neck disability) requires additional clarification as the disabilities do not have to be solely due to active service, only at least as likely as not be related to service for service connection to be awarded. Moreover, the Board finds an additional opinion is required as the April 2016 examiner did not address all relevant evidence of record, specifically the August 2015 opinion by Dr. C.V. which the Board specifically requested comment on its last remand. See Stegall, 11 Vet. App. at 271. Updated VA treatment records should also be associated with the claims file. 38 U.S.C. § 5103A(c). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the file updated VA treatment records dating since August 2017. 2. After completing any records development, send the claims file to an examiner to provide a medical opinion regarding the etiology of the Veteran's back and cervical spine disabilities. If a new examination is deemed necessary to respond to the request, one should be scheduled. The examiner must address all back and neck disorders present during the pendency of the appeal, to include the diagnosis of cervical stenosis noted by Dr. C.V. In so doing, the examiner must address the following: a) Does the diagnosed cervical stenosis constitute a congenital defect or a disease? Generally, a congenital defect refers to normally static, structural or inherent body abnormalities which are typically present at birth and generally incapable of improvement or deterioration while a congenital disease refers to a condition capable of improving or deteriorating. b) If the examiner determines cervical stenosis is a congenital defect, is there an additional disability due to disease or injury superimposed upon such defect during service? c) If the examiner finds cervical stenosis to be a congenital disease, was the disease aggravated (a worsening of the underlying condition as compared to an increase in symptoms) by his military service beyond the natural progression? d) If cervical stenosis is not congenital in nature, the examiner must state whether the disorder is at least as likely as not (50 percent probability or greater) related to the Veteran's active service. For each back and neck disability other than cervical stenosis, specifically arthritis, the examiner should then provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder had its onset within one year of separation from service (May 1969), was caused by service, or is otherwise etiologically related to the Veteran's active service. The rationale for all opinions expressed must also be provided. The examiner should specifically address the August 2015 opinion by Dr. C.V. as well as lay statements that the Veteran experienced back and neck pain in service due to lifting heavy equipment on and off of planes that continued since. 3. After completing the requested actions, and any additional actions deemed warranted, the AOJ should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).