Citation Nr: 1804198 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 10-45 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to increases in the staged (20 percent prior to August 27, 2015, and 30 percent from that date) ratings assigned for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1976 to October 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO), which assigned a temporary total (convalescence) rating from February 3, 2009, through March 31, 2009, and increased the rating for his cervical spine disability to 20 percent from April 1, 2009. A January 2016 rating decision increased the rating to 30 percent effective August 27, 2015. In October 2016, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the Veteran's record. In March 2017, the case was remanded for additional development. An interim (September 2017) rating decision granted service connection for left upper extremity radiculopathy (as secondary to the cervical spine disability), rated 30 percent effective October 14, 2016. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. REMAND In March 2017, the Board remanded this matter for an examination to assess the severity of the Veteran's service-connected cervical spine disability and a medical opinion regarding the etiology of his reported headaches (and upper extremity radiculopathy). The examiner was to reconcile the conflicting medical evidence regarding the etiology of the Veteran's headaches; possible noted causes in the evidence of record were chronic tension headaches and poor sleep hygiene (as a CT scan of the head was normal and did not reveal a secondary cause), or alternatively a mixture of tension headaches combined with chronic neck pain and possible analgesic headaches. See separate October 4, 2012 VA clinical records. On May 2017 VA neck examination, the examining physician indicated that the Veteran does not have any neurologic abnormalities (other than now separately rated left upper extremity moderate radiculopathy). However, she later wrote, "EMG is ordered and the patient is referred to neurology for headache [emphasis added] and cervical radiculopathy." A June 20, 2017 electromyogram (EMG) (by a VA neurologist) found no electrophysiological evidence of left cervical radiculopathy, median neuropathy, or ulnar radiculopathy; the neurologist did not address the Veteran's headaches. There is no indication that the record was returned to the May 2017 examiner for an addendum opinion regarding the etiology of the Veteran's headaches, and VA clinical records since then do not address the question. As the Board remanded the matter, in part, for diagnostic clarification, specifically asking the examiner to ascertain the etiology of the Veteran's headaches and to reconcile her finding with any conflicting evidence of record, the Board finds that the May 2017 examination report has not substantially complied with the March 2017 remand orders, and that corrective action is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Development to secure an advisory opinion that resolves the medical question remaining is necessary. The record shows that the Veteran receives ongoing VA treatment for his neck disability. The most recent records of VA treatment/examination in the record are from September 2017. Records of all evaluations or treatment the Veteran has received for his neck and headaches during the evaluation period are pertinent evidence in the matter at hand, are constructively of record, and must be secured. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record all updated records of VA evaluations or treatment (i.e., those not already in the record) the Veteran has received for his neck and headaches, specifically including all such records generated since September 2017 (when the most recent VA treatment records in the record are dated). 2. The AOJ should then arrange for the Veteran's record to be forwarded to the May 2017 examiner for review and an addendum opinion. [If that provider is unavailable, the record should be forwarded to another neurologist (or other appropriate physician) for review and the opinion sought.] The entire record (to include this remand and any newly obtained records) must be reviewed by the examiner. The examiner should specifically opine whether or not the Veteran's headaches are a neurological manifestation of his service-connected cervical spine disability. [If further examination of the Veteran is deemed necessary to address this question, such should be arranged.] The examiner is asked to reconcile the findings with the various diagnoses and opinions (regarding the nature of the disability underlying the Veteran's headaches and their etiology) already in the record in this matter, as noted above. The opinion must include rationale with citation to supporting factual data and medical literature/treatise as deemed appropriate. 3. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).