Citation Nr: 1802488 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-20 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to September 1981 in the United States Army. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In January 2017, the Board remanded for further evidentiary development and readjudication. The claim has now been returned to the Board for further action. REMAND The Board again finds that additional development is warranted in this case before a decision may be rendered. A remand by the Board confers upon a Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v West, 11 Vet.App. 268, 271 (1998). In the January 2017 remand, the Board found the Veteran must be afforded a VA examination to address the etiology of the Veteran's cervical spine disability. See McLendon v Nicholson, 20 Vet. App. 79, 83-86 (2006); see also Barr v Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). More specifically, the Board noted that the April 2012 VA examiner opined that it was less likely than not the Veteran's current cervical spine disability was related to service, finding there was no service treatment records indicating cervical spine issues. However, a July 1981 service treatment record indicates the Veteran reported upper back pain near the shoulder. Since it was not clear that the examiner had considered this evidence, the Board remanded the issue for a new VA examination. In response to the Board's remand, a VA examination of the Veteran's cervical spine disability occurred in March 2017. However, the March 2017 VA examination does not adequately address the issues raised in the remand. Specifically, the examiner continues to state in both the April 2017 written examination report, and an April 2017 addendum report, that "There is no report of C-spine injury or complaint during his time in service." Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided. Barr v Nicholson, 21 Vet. App. 303 (2007). Therefore, on remand the Agency of Original Jurisdiction (AOJ) must obtain an additional medical opinion by a qualified VA examiner to address the etiology of the Veteran's cervical spine disability, to include addressing the July 1981 service treatment record wherein the Veteran complained of upper back pain. If further examination of the Veteran is necessary, such must be undertaken and such findings included in the examiner's final report. The AOJ must arrange for the Veteran to undergo examination, however, only if such examination is needed to answer the questions posed. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claims file and a copy of this Remand to the examiner who conducted the March 2017 VA examination, or if that examiner is unavailable, to another qualified VA medical professional, who must offer a well-reasoned opinion that addresses the etiology of the Veteran's cervical spine disability, including whether it may be attributed to service. The examiner must specifically address the July 1981 service treatment record showing complaints of right sided upper back pain near the shoulder, as well as the Veteran's statements regarding the details of his alleged in-service motor vehicle accident and that his neck symptoms started in 2006 from a long history of working at a meat packing plant. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. After completing the above, readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant 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). _________________________________________________ KELLI A. KORDICH 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).