Citation Nr: 21000006 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 08-38 786 DATE: January 4, 2021 REMANDED Entitlement to service connection for a neck condition, to include as secondary to service connected TMJ is remanded. Entitlement to service connection for a back condition, to include as secondary to service connected TMJ is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 10, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from October 1967 to October 1971 with additional periods of service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2007 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board for further development in a February 2020 decision. When VA undertakes to provide an examination or opinion, it must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Neck and Back As part of the February 2020 Board Remand the RO was required to obtain VA examinations for the Veteran’s claimed disabilities. The VA examiners were required to offer opinions on the etiology of the Veteran’s conditions, to include as whether they are at least as likely as not etiologically related to his service connected TMJ disability. A complete rationale was required from the examiners regarding their opinions. While the RO obtained a July 2020 VA Acceptable Clinical Evidence (ACE) review for the Veteran’s claimed disabilities, the Board finds it to be inadequate. In proffering their opinion, the VA examiner did not provide an adequate medical reasoning for the Veteran’s contention that his condition was related to active duty service. The examiner stated that a review of the evidence indicated that there was no condition, injury or event that would result in a chronic condition and further noted that the Veteran’s degenerative disc disease diagnoses were not noted until 2014 with no evidence that these conditions were present during the Veteran’s active duty service. Further, the examiner indicated that the Veteran’s back and neck conditions were not caused, or aggravated by, his service connected TMJ. However, the Board notes that the Veteran’s service treatment records (STRs) contain multiple reports of treatment for low back pain and neck strain. Further, the Board notes that the Veteran enlisted in the Arkansas Army National Guard following his period of active duty service and had training as recently as 2009. The Veteran’s STRs from his time in the National Guard indicate complaints of, and treatment for, low back and neck pain. The Veteran additionally submitted private treatment records from a Dr. J. which indicated that the Veteran’s symptoms of neck and back pain have existed for many years and additionally, the Veteran submitted treatment notes from a Dr. T.L. which indicated the Veteran had degenerative disc disease diagnosed since at least 2007. However, the July 2020 examiner did not provide an opinion as to whether the Veteran’s active service in the National Guard could have aggravated his conditions beyond the course of natural progression. As such, the Board finds that an additional medical opinion is necessary. TDIU Finally, the Board notes the issue of entitlement to a TDIU rating must be held in abeyance at this time, because this issue is intrinsically intertwined with the above-noted remanded issues. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Afford the Veteran VA examinations by an examiner(s), who have yet to examine the Veteran, with sufficient expertise to address the etiology of the Veteran’s back and neck disabilities. The electronic records should be made available to and reviewed by the examiner(s). All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner(s) should state whether the Veteran’s claimed disabilities at least as likely as not (a 50 percent probability or greater): originated during his period of active service or is otherwise etiologically related to his active service. The examiner must specifically comment on whether the Veteran’s claimed disabilities were due to or aggravated by his service connected TMJ disability. Additionally, the examiner must opine on whether the Veteran’s periods of active service in the National Guard at least as likely as not (a 50 percent probability or greater) caused or aggravated the Veteran’s claimed disabilities beyond the course of their natural progression. The examiner(s) must provide a complete rationale for all proffered opinions. In this regard, the examiner(s) must discuss and consider the Veteran’s competent lay statements. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case. Further, the examiner(s) must state whether the inability to provide the required opinions is based on a personal limitation or on a lack of knowledge among the medical community at large. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.