Citation Nr: 21071209 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-00 730 DATE: November 30, 2021 REMANDED Entitlement to service connection for a neck condition, to include as secondary to a service-connected lumbar spine condition, is remanded. REASONS FOR REMAND The Veteran served in the United States Air Force from March 1974 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board remanded the issues of entitlement to service connection for a neck condition and radiating bilateral lower extremity pain for additional evidentiary development. In June 2021, an RO granted entitlement to service connection for lumbar radiculopathy for both lower extremities. As such, this issue has been granted in full and is no longer before the Board. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of a neck condition. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran appeared at a hearing before a Veterans Law Judge (VLJ) in February 2017. The presiding VLJ has since retired from the Board. The Veteran was offered an additional hearing but did not respond. The Board will proceed to consider the evidence of record. The May 2018 Board remand directives sought an adequate VA examination of the Veteran's neck condition and opinions regarding direct and secondary service connection. The Veteran was afforded a VA examination in June 2021. In regard to direct service connection, the examiner stated the Veteran's neck condition was less likely than not related to service because they were unable to find records showing treatment for a neck injury while in service. The Board finds this opinion conclusory as it does not offer any explanation for its findings. Additionally, it is well settled that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). As to secondary service connection, the examiner opined it was less likely than not that the Veteran's neck condition was proximately caused by his lumbar spine condition, saying there is no relationship between the lumbar and cervical spines. The examiner also noted that the Veteran's neck condition was less likely than not aggravated by the Veteran's lumbar spine condition because severity could not be established due to the lack of medical records and that the lumbar spine does not affect the cervical spine. The Board finds this opinion to be conclusory as it does not offer any support for its findings. Additionally, the opinion improperly relied upon the absence of contemporaneous records. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA medical examination addressing the nature and etiology of his claimed neck condition. His claims file, including a copy of this remand, must be made available to the examiner in conjunction with the examination. Review should be indicated in the examination report. All pertinent symptoms and findings must be reported in detail. 2. Following review of the evidence of record, the clinical examination results, and the Veteran's credible statements, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a neck condition, which is etiologically related to his active military service. (b.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's claimed neck condition, is proximately due to or aggravated by his service-connected disabilities, including his service-connected lumbar spine DJD and spondylolisthesis. When responding, the examiner should consider the lay statements of record regarding the nature and onset of symptoms. The examiner is advised that the Veteran is competent to report symptoms and treatment. Also, the mere absence of evidence of contemporaneous treatment in the service treatment records cannot, standing alone, serve as the sole basis for an unfavorable opinion. However, it is permissible to consider this as one factor in the determination regarding the origins of the claimed disability, providing there is also sufficient explanation as to why it is reasonable to have expectation of treatment in the circumstance presented. All answers to the questions listed above must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee Feldman, 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.