Citation Nr: 1804689 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-25 241A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from July 1960 to December 1960 and October 1961 to August 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction currently resides with the RO in Atlanta, Georgia. The Veteran filed a Notice of Disagreement in March 2014. A Statement of the Case (SOC) was issued in June 2014. The Veteran filed his Substantive Appeal in July 2014. In July 2017, the Board remanded the matter to the AOJ for further evidentiary development, which included providing a VA examination regarding the Veteran's claim for service connection for a cervical spine disability. 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. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AOJ has complied with some of the Board's remand directives. Unfortunately, the VA examination provided to the Veteran has been found inadequate. 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 appellant if further action is required. REMAND The Board directives ask specific questions that the VA examiner should address in his opinion regarding the Veteran. These questions, put simply, were not answered or address in anyway in the July 2017 addendum opinion. As such, the Board is obligated to ensure that the questions are address before adjudication of the Veteran's appeal may proceed. See Stegall v. West, supra. The focus of the July 2017 remand was to determine the character of the congenital disability. The issue arose as the Veteran admitted that his disability was congenital in nature and contended that this disability was aggravated during his military service. Hence, the Board directed the examiner to determine whether the Veteran's disability was either the product of a congenital disease or congenital defect. The July 2017 addendum opinion did not address this or the related questions about aggravation. Instead, the examiner treated the Veteran's appeal as a simple service connection claim not considering the unique characteristic raised by the Veteran's contentions. Service connection may be granted for diseases, but not defects, of congenital, developmental, or familial origin. VAOGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). In differentiating the two categories, VA's Office of General Counsel has stated that, when viewed in the context of 38 C.F.R. § 3.303(c) , the term "defects" would be definable "as structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90. In contrast, a "disease" is referred to a condition considered capable of improving or deteriorating. Id. 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. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. Schedule the Veteran for an appropriate VA examination(s) with an appropriate VA examiner(s). The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All studies, tests, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. Obtain a medical opinion regarding the etiology and nature of the Veteran's cervical spine disability. The entire claims file must be reviewed by the examiner, including a copy of this remand. THE EXAMINER SHOULD ALSO REVIEW THE VETERAN'S LAY STATEMENTS OF RECORD REGARDING HIS CERVICAL SPINE DISABILITY. After reviewing the claims file and, if necessary, conducting a supplemental examination of the Veteran, including any testing deemed necessary, the examiner should address the following: (a) Is the Veteran's cervical spine disability a congenital defect or disease? For VA purposes, a defect is a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration. In contrast, a disease is capable of improvement or deterioration. (b) If the Veteran's cervical spine disability is a congenital defect, is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran suffers from additional disability due to aggravation of the defect during service because of a superimposed disease or injury? (c) If the Veteran's cervical spine disability is a congenital disease, the examiner is asked to address whether the Veteran's disability, which was not noted upon entry into service, clearly and unmistakably existed prior to the Veteran's entry into military service. If pre-existence is demonstrated clearly and unmistakably, the examiner should then opine whether the Veteran's cervical spine disability was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression of the disease) during military service. If it is found that there is clear and unmistakable evidence that the Veteran's cervical spine disability existed prior to service AND that there is clear and unmistakable evidence that the condition was not aggravated by service, the examiner should clearly indicate the basis/evidence supporting his/her conclusions. (d) If, however, the examiner does not find that there is clear and unmistakable evidence that the Veteran's cervical spine disability pre-existed military service OR that any pre-existing condition was aggravated in service, the examiner should then opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the currently diagnosed cervical spine disability was incurred in, caused by, or is otherwise related to, the Veteran's military service. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence, particularly the service treatment records documenting treatment for a neck condition in October 1961, private treatment records documenting treatment for a cervical spine disability, and the Veteran's statements regarding cervical pain in service and since discharge. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a full rationale for each opinion given. 2. Thereafter, the AOJ must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and, if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Following the completion of the foregoing, the AOJ should readjudicate the Veteran's claim. If the claim remains denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).