Citation Nr: 21002391 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 09-06 848 DATE: January 13, 2021 REMANDED Entitlement to service connection for residuals of head injury, to include headaches, is remanded. Entitlement to service connection for degenerative arthritis of the cervical spine is remanded. Entitlement to service connection for radiculopathy of the upper extremities is remanded. REASONS FOR REMAND The Veteran had active duty military service from July 1975 to July 1978. These matters were previously before the Board in March 2017 when the claim of service connection for headaches as residuals of a head injury in service was denied. (See BVA Decision, 03/01/2017.) The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), which in June 2018 granted a Joint Motion for Remand (JMR) directing further development on the issue of service connection for head injury residuals and remand of the issues of service connection for cervical spine and radiculopathy for issuance of a Statement of the case (SOC). (See CAVC Decision, 06/22/2018.) The Board then remanded all of these issues in December 2018 with instructions for further development, including an examination or opinion, and issuance of the SOC. (See BVA Decision, 12/11/2018.) On remand, the Veteran was afforded VA examinations in October 2019 and provided a private examination in the form of a Disability Benefits Questionnaire (DBQ). In addition, the Agency of Original Jurisdiction (AOJ) issued a Supplemental Statement of the Case (SSOC) regarding the claims of service connection for cervical spine and radiculopathy. Unfortunately, the VA examinations and opinions obtained are insufficient for adjudicatory purposes and additional opinions must be obtained on remand. In addition, procedural errors with respect to the claims of service connection for cervical spine and radiculopathy must also be corrected. 1. Entitlement to service connection for residuals of head injury, to include headaches The Veteran seeks service connection for residuals of a head injury incurred in service. The service treatment records show that he struck the top of his head on metal beam in service and sustained a laceration to the top of his head. He now reports frequent severe headaches, which he asserts have been present since the injury in March 1976. In the past, the Board obtained a VHA opinion with respect to this claim, which returned a negative opinion. The JMR determined that a VA examination and opinion on the issue was warranted and an examination was duly ordered upon remand by the Board. The examiner was instructed to consider the lay statements in rendering an opinion and did discuss the Veteran’s statements about his headaches. The examiner did not, however, address the other lay statements regarding the Veteran’s history and severity of his headache symptoms. In addition, the examiner submitted a DBQ completed by his primary care provider which addressed the same questions as those posed to the VA examiner, with a differing opinion. The VA examiner noted the private opinion but discounted it based on a finding that the private provider had not reviewed any records or explained the basis for the medical opinions provided. The private provider filed a response noting that he had indicated that he had reviewed the records (and proceeded to name the specific records reviewed) and noted that the basis for his opinion was basic medical knowledge and provided references for his opinion. In light of the failure to fully to address the lay statements, the Board finds that further development is needed here. Specifically, the Veteran should be afforded another VA examination and opinion by a neurologist or other specialist in headaches that will address the significance of this disputed findings between the VA examiner and the private provider. To the extent necessary and relevant, the examination and opinion should also address the matter of the other issues on appeal, namely, service connection for cervical spine disability and radiculopathy. 2. Entitlement to service connection for degenerative arthritis of the cervical spine 3. Entitlement to service connection for radiculopathy of the upper extremities The Veteran also seeks service connection for degenerative arthritis of the cervical spine, which he asserts is the result of the head injury in service, and for radiculopathy of the upper extremities as a result of the cervical spine disability. The Board notes that, after the Board decision in March 2017 and before the JMR issued in June 2018, the AOJ issued a Statement of the Case on the issues of service connection for cervical spine and radiculopathy in October 2017 and the Veteran filed a timely VA Form 9 in the same month. (See SOC, 10/20/2017, and Form 9, 10/31/2017.) However, the June 2018 JMR, which was granted by the Court, ordered that an SOC be issued with respect to these issues. This appears to have been the result of an oversight by the parties and the Court when issuing the JMR; nevertheless, it is part of the order issued by the Court. The Board decision in December 2018 likewise directed that an SOC be issued. The AOJ, having already issued an SOC, instead issued an SSOC in May 2020. (See SSOC, 05/27/2020.) Unfortunately, because of the standard of Stegall v. West, 11 Vet. App. 268 (1998), strict compliance with the remand instructions is required. As such, the Board must remand the matter with instructions to issue an SOC, despite the apparent absurdity and ineffectualness of this request. The Board notes that these claims are related to and intertwined with the claim regarding residuals of a head injury in service, as all are asserted to have been caused by the same incident in service. Therefore, after the development with respect to the residuals of head injury have been readjudicated, additional consideration and possible readjudication of the claims for cervical spine disability and resulting upper extremity radiculopathy may be warranted. Such readjudication may include an additional VA examination and opinion on these claims. The matters are REMANDED for the following action: 1. Issue a Statement of the Case with respect to the claims of service connection for cervical spine disability and radiculopathy, pursuant to the JMR and the prior Board remand instructions. The AOJ is free to note that the issuance of the SOC is pro forma and that the Veteran has already properly and timely filed a Form 9 with respect to these claims. 2. Afford the Veteran a VA examination conducted by a neurologist or other headache specialist to address the claim of service connection for head injury residuals, including headaches. Specifically, the examiner should note the location of the laceration sustained in service with as much specificity as possible, to include based on examination of any scars, and discussion of the likely residuals of trauma to this area. The examiner should also address the nature of the laceration, to include whether it was a split laceration based on compression of skin between two surfaces. The examiner should also obtain from the Veteran a complete history of his headaches since the injury in March 1976, as well as reviewing the lay statements provided by friends and family and the medical records. Based on all of this information, the VA examiner should then offer an opinion as to whether it is at least as likely as not (probability 50 percent or greater) that the Veteran’s recurrent headaches are the result of the injury in service. In addressing this question, the examiner should cite any relevant medical principles and any evidence of record which informs the opinion. In addition, the examiner should address the articles submitted by the Veteran and those cited by the private provider in the letter of September 2020. The examiner should address the significance, if any, of continuity of symptomatology as described by the Veteran and any worsening severity of symptomatology as demonstrated by the evidence. If deemed relevant by the examiner or requested by the AOJ, the examiner should also address the impact of the head injury in service with respect to the Veteran’s claim of service connection for degenerative arthritis of the cervical spine. The examiner is asked to provide a statement of the reasons or rationale for all opinions offered. 3. IF deemed relevant or necessary by the AOJ in light of the opinions obtained and any additional evidence submitted, an opinion with respect to the nature and etiology of the Veteran’s cervical spine disability and any related radiculopathy should likewise be obtained. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Cheryl E. Handy 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.