Citation Nr: 1808965 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 09-22 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for back disability. 2. Entitlement to service connection for cervical spine disability. REPRESENTATION Veteran represented by: Harold H. Hoffman-Logsdon, III, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel INTRODUCTION The Veteran had honorable active service from April 30, 1974 to August 5, 1983, and had other than honorable service from August 6, 1983 to December 22, 1987. A September 1988 Administrative Decision determined that the second period of service was a bar to VA compensation benefits. This matter is before the Board of Veterans' Appeals (Board) on appeal from am August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified at a Board hearing in December 2009. A transcript of the hearing is associated with the electronic claims file. In February 2010 and February 2012, the Board remanded the Veteran's claims for entitlement to service connection for a back disability and degenerative disc disease of the cervical spine, for further evidentiary development. The Board denied the Veteran's claim for entitlement to service connection for a cervical spine disability in May 2013 and remanded the service connection claim for a back disability for evidentiary development. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2014 Order, the Court granted a Joint Motion for Remand (JMR) and remanded the matter to the Board for action consistent with the motion. In April 2015, the Board remanded the Veteran's claims for entitlement to service connection for a back disability and degenerative disc disease of the cervical spine, for further evidentiary development. In June 2016, the Board denied the claims. The Veteran filed an appeal to the Court. In August 2017, the Veteran's representative and VA General Counsel filed a JMR. The Court granted the JMR in August 2017, vacating the June 2016 Board decision and remanding the matter for additional proceedings consistent with the joint motion. The case was returned to the Board in compliance with the JMR. The Board finds that the February 2016 VA spine examination reports did not substantially comply with the April 2015 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The record reflects the Veteran was afforded VA spine examinations in April 2010, March 2012, and June 2013. Prior Board decisions and remands accorded little probative weight to the opinions of the respective VA examiners due to inadequate rationales. In February 2012, the Board found the April 2010 VA examiner did not cite to any medical records in support of the rationale for the July 2010 negative etiological opinion and that the opined legal conclusions were irrelevant in the formulation of a medical opinion. The Board, in its May 2013 and April 2015 remand orders, found that the March 2012 and June 2013 VA examiners did not take into account relevant information in the Veteran's claims file. The Board noted the examiners did not consider the anterior wedging at L1 of the lumbar spine identified on a May 1976 in-service x-ray, and a subsequent 2002 magnetic resonance imaging (MRI) scan. The Board finds that a remand is warranted for additional development. A remand by the Board confers upon the 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, 11 Vet. App. at 271. 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. As such, another remand is warranted. Pursuant to the Board's remand in April 2015, a subsequent VA examination reports were obtained in February 2016. Regarding the cervical spine, the VA examiner noted the Veteran is diagnosed with degenerative disease of the cervical spine. The VA examiner opined the condition was less likely than not incurred in, or was exacerbated by his service from 1979 to 1983. A July 1986 x-ray of the cervical spine taken following a left shoulder injury identified mild osteoarthritis. The VA examiner indicated there is no documented cervical injury at the time of the left shoulder separation or thereafter in the service treatment records. The VA examiner further noted no complaints of neck pain or documented cervical injury were reported in an October 1979 treatment record for a nose injury. Concerning the lumbar spine, the VA examiner noted the anterior wedging at the Veteran's L1 vertebra and diagnoses of degenerative disease of the thoracolumbar spine and degenerative spondylosis as identified on in-service and post-service diagnostic scans. The VA examiner opined that it is less likely than not that the Veteran's degenerative disease of the thoracolumbar spine had its onset during the Veteran's period of service. The VA examiner reported that the Veteran's private physician referenced three dates of September 1977, January 1979, and June 1979 in his May 2015 correspondence. Upon review of the aforementioned treatment dates, the VA examiner stated that there were no subsequent follow-up visits. Therefore, the VA examiner opined that the three visits do not support a claim that any chronic condition of the thoracolumbar spine existed during the Veteran's covered service period from 1979 to 1983. If VA provides an examination that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Although the VA examiner referenced relevant diagnostic testing in the claims file, the opinion rationale did not reconcile the July 1986 finding of osteoarthritis of the cervical spine. To have probative value, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Regarding the lumbar spine, the VA examiner only referenced the May 1976 x-ray that documented anterior wedging of the L1 vertebra but did not discuss the relevance of the diagnostic finding. Rather, the VA examiner premised the negative etiological opinion primarily upon whether the Veteran's low back disability constituted a chronic condition for VA purposes. Thus, the VA examination reports are inadequate in this case. As such, the Board finds it must remand the claim for an addendum opinion to determine the nature and etiology of the Veteran's low back and cervical spine disabilities. Stegall, 11 Vet. App. at 271. Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with the case file any further medical records (private and/or VA) identified and authorized for release by the Veteran. 2. After undertaking the development listed above to the extent possible, an addendum VA medical opinion should be obtained to determine the nature and etiology of the Veteran's low back and cervical spine disabilities. The VA examiner should answer the following questions: a) Identify all current low back and cervical spine disabilities. b) For all low back/lumbar spine/thoracic spine/cervical spine disabilities identified, is it at least as likely as not (a fifty percent probability or greater) that the spine disability had its clinical onset during the Veteran's period of service from April 30, 1974 to August 5, 1983, or is otherwise related to such period of service? Attention is invited to service treatment records dated September 1977, June 1978, October 1978, January 1979, and October 1979, and a May 1976 x-ray that documents anterior wedging of the L1 vertebra. Attention is further invited to VA outpatient treatment records dated July 2001, August 2002, January 2003, April 2003, and August 2004. The examiner must also consider the February 2012 and October 2015 private opinions. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. The underlying reasons for any opinions expressed must be included in the report. 3. Thereafter, readjudicate the issues on appeal. If the determinations remain unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the matters 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. §§ 5109B, 7112 (2012). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).