Citation Nr: 21070322 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-11 288A DATE: November 23, 2021 REMANDED Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected thoracolumbar spine disability is remanded. REASONS FOR REMAND The Veteran served in the United States Navy (USN) from November 1977 to August 1981. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) rating decision of the Agency of Original Jurisdiction (AOJ). With regard to the instant claim, in September 2021 the Board remanded the Veteran's claim for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the September 2021 remand, for the reasons discussed below, the Board finds that there has not been substantial compliance with the remand directives. While the Board regrets the additional delay, yet another remand is necessary to allow the Veteran to develop his claim. 1. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected thoracolumbar spine disability is remanded. The Veteran claims that his cervical spine, or neck, disability, is caused by, or otherwise due to, his active-duty military service. In the alternative, the Veteran is claiming that his neck disability is caused by or aggravated by his service-connected thoracolumbar disability. As noted above, in September 2021 the Board remanded the Veteran's claim for additional development. Regarding the Veteran's claim for secondary service connection, the Board requested that the examiner opine on "whether it is as least as likely as not ... that the Veteran's current cervical spine disability is proximately due to or aggravated beyond the natural progression of the disease by his service-connected thoracolumbar spine disability." In October 2021, the AOJ obtained an addendum medical opinion from an examiner as requested. However, instead of addressing the request posed by the remand directives, the examiner made a unilateral finding that the Veteran's thoracolumbar spine disability is "determined NOT [to be] due to military service" (emphasis in original). Based on that, the examiner continued, finding that "any claims secondary to [a thoracolumbar spine disability] including any for a cervical spine are therefore invalid." The Board finds that the October 2021 examiner failed to address the question presented to him, namely whether or not the Veteran's cervical spine disability is caused by, due to, or aggravated beyond the natural progression of the disease by his service-connected thoracolumbar spine disability. It is not within the examiner's purview to unilaterally make determinations as to whether disabilities already found to be service-connected should continue to be service connected. The October 2021 examiner failed to answer the question presented to him in the September 2021 remand directives, and therefore a further remand is necessary to allow the Veteran to develop his claim. The matters are REMANDED for the following action: 1. The AOJ shall obtain an addendum medical opinion to determine the etiology of the Veteran's neck disability. The examiner shall be provided with a copy of the claims file, as well as a copy of these remand directives. As service-connected has already been established for degenerative disc disease with spinal fusion, status post L5-S1 laminectomies, the examiner is asked to provide the following opinion: (a.) Whether it is as least as likely as not (approximately 50 percent chance or greater) that the Veteran's current cervical spine disability is proximately due to or aggravated by his service-connected thoracolumbar spine disability. The examiner is advised that secondary service connection based on aggravation does NOT require "permanent" worsening of the claimed condition by the service-connected disability. Aggravation for purposes of secondary service connection can be "any incremental increase in disability and additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence," which does not require permanent worsening of the condition beyond its natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner must provide a complete rationale for the required opinion. If the examiner cannot provide the necessary opinion without an in-person examination of the Veteran, the AOJ shall schedule such an examination. If the examiner cannot provide the necessary opinion without resorting to mere speculation, the examiner must explain why that is the case. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, Associate Counsel 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.