Citation Nr: 1807033 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-25 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for headaches, to include as secondary to cervical spine disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD H. Daus, Associate Counsel INTRODUCTION The Veteran had qualifying service from September 1972 to September 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. In April 2014, May 2016, and July 2017, the Board remanded for further development. As explained below, substantial compliance has not yet been achieved. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND When this case was last before the Board, it was remanded to obtain a supplemental opinion. This was to clarify whether a chiropractic record from 1989 and a VA examination report from 1990, both of which showed the presence of cervical spine complaints, were considered when the last opinion provider found the veteran's claimed cervical spine disorder was unrelated to service. She also was asked to provide a rationale for her conclusion that the veteran's cervical spine disability was not aggravated by the Veteran's service connected lumbar spine disability. In the August 2017 response to the Board's remand, the provider does not appear to address the 1990 VA examination report, and in discussing the chiropractic record appears to conclude the Veteran did not have any neck complaints at the time, until it was suggested to him by the chiropractor, which she in turn attributes to a business/economic motivation on the part of the chiropractor. In this regard, it is not perfectly certain that it was the chiropractor who prompted the Veteran to complain of neck pain. As such, when considering this record, it should be assumed the complaints were made spontaneously by the Veteran. That this was the case is supported by the VA examination report the following year that included X-rays showing minimal narrowing of the left C5-C6 intervertebral foramin. In any event, the examiner does not appear to have discussed the 1990 VA record, and her understanding of the facts found in the chiropractic record should be that the Veteran genuinely expressed neck complaints. Although the examiner also may have reasoned that her previously expressed opinion on causation should be understood to have subsumed any question concerning the significance of the 1989 and 1990 records, as case law has developed concerning what constitutes compliance with a Board remand, it is considered necessary to follow-up with the examiner so she can specifically address whether the chiropractic record and the 1990 VA examination report in any way changes her opinion that the Veteran's current cervical spine disability is not related to service. If they do not, the reasons for that should be set out, (although it should be understood the Veteran did have neck complaints noted in 1989 and 1990 records.) With respect to the question of whether the Veteran's cervical spine disability is secondary to the Veteran's lumbar spine disability, it is noted that secondary service connection may be granted for disability proximately due to, or aggravated by, a service connected disability. 38 C.F.R. § 3.310. The prior opinion provider appears to have focused on the causation element of that question. Perhaps she reasoned that having concluded the claimed disability was a natural consequence of the Veteran's long post service physically demanding job occupation, it logically followed that the lumbar spine disability did not cause the claimed disability, nor was there any medical process by which it could make the cervical spine disability worse. However, as case law has developed in this area, it has become necessary in many instances to obtain a more concrete expression of an examiner's opinion concerning whether a service connected disability aggravated the claimed disability. A more explicit opinion on whether the lumbar spine disability aggravated the cervical spine disability is sought in this case. Under the circumstances described above, another addendum medical opinion should be sought, and in the event the prior examiner is unable or unwilling to provide it, another more comprehensive opinion should be sought, as detailed below. The headache disability claim is deferred pending the development sought below. Accordingly, this case is REMANDED for the following: 1. Provide the claims file to the August 2016/2017 VA examiner to obtain another addendum opinion. After reviewing the file and the reasons for requesting this opinion as set out in the body of this remand above, the examiner should indicate whether the 1989 chiropractic record and the March 1990 VA examination report change her opinion that the Veteran's current cervical spine disability is not related to service. (A simple affirmative or negative response, followed by an explanation for the response is requested.) The examiner should also provide a specific rationale to support her opinion provided in the August 2016 VA examination report that the Veteran's cervical spine disability was not aggravated (increased in severity beyond its natural progression) by his service-connected degenerative disc disease of the lumbar spine. 2. If the August 2016/2017 VA examiner is unable or unwilling to provide the requested opinions, please provide the claims file to another appropriate examiner to obtain an opinion addressing whether it is at least as likely as not (50 percent or higher probability) that a currently diagnosed cervical spine disability is related to service and if not, whether a currently diagnosed cervical spine disability was permanently worsened beyond normal progression (verses temporary exacerbation of the symptoms) by the Veteran's service-connected degenerative disc disease of the lumbar spine. A rationale for the opinions should be provided. 3. After ensuring the requested development has been accomplished and undertaking any additional development deemed necessary, the claims for service connection for a cervical spine disability and headaches should be re-adjudicated. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given an appropriate period to respond before the case is returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the remanded matters. See Kutscherousky v. West, 12 Vet. App. 369 (1999). All remanded claims must be handled expeditiously. See 38 U.S.C. §§ 5109B, 7112 (West 2012). _________________________________________________ M. E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Only a Board decision is appealable to the United States Court of Appeals for Veterans Claims. See 38 U.S.C. § 7252 (West 2012). This remand is in the nature of a preliminary order and does not constitute a Board decision on the merits of your appeals. See 38 C.F.R. § 20.1100(b) (2017).