Citation Nr: 21072540 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 14-29 564 DATE: December 3, 2021 REMANDED Entitlement to compensation under 38 U.S.C. §1151 for a thoracic spine disability, claimed as a back condition, contended to be due to a June 23, 2010, spinal cord stimulator implant surgery at a VA medical facility, is remanded. REASONS FOR REMAND The Veteran had active service from November 1972 to November 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO). In November 2016, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The law requires the VLJ who conducts a hearing to participate in any decision made on the appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In a January 2021 letter, the Veteran was notified that the VLJ who conducted the November 2016 Board hearing was no longer at the Board. The Veteran did not respond with a request for another optional Board hearing within 30 days of the letter. Therefore, the Board will proceed to consider the claim without additional hearing testimony. Historically, the Board previously remanded this matter in April 2018, February 2021, and again in May 2021, with the last two remands due to Stegall violations. Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order. Moreover, the Court held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. In February 2021, the Board remanded the case for a VA muscle examination and addendum opinion, including rationale, addressing the Veteran's disabilities stemming from the June 2010 spinal cord stimulator implant surgery and subsequent removal of the stimulator. To date, the Veteran has not been afforded a VA muscle examination. The Board finds that the AOJ did not substantially comply with the February 2021 remand directives because the Veteran has not been afforded a VA muscle examination. While additional delay is regrettable, the Board finds that another remand is required to fairly decide the Veteran's claim. VA will notify the appellant if further action is required. The AOJ is advised that this case has been remanded by the Board four times (including the remand herein. See Stegall, 11 Vet. App. at 271. Expeditious treatment and substantial compliance with remand directives are required. The matters are REMANDED for the following action: Schedule the Veteran a VA muscle examination with the appropriate examiner, who will identify all residual muscle disability associated with the June 2010 surgery spinal cord stimulator implant surgery and subsequent removal of the stimulator. The examiner is to render an opinion, including rationale, addressing all of the Veteran's disabilities stemming from the June 2010 spinal cord stimulator implant surgery and subsequent removal of the stimulator. The examiner should address all diagnoses of record, to include: (1) surgical scar, (2) incisional pain, (3) TTP of the paraspinal muscles at the lower third of the incision site, (4) thoracic muscle strain to trapezius and latissimus dorsi, and (5) any other disability found on examination that is deemed due to the spinal cord stimulator implant surgery and/or subsequent removal. In particular, for each disability numbered (1) through (5) above, the examiner is directed to render an opinion whether the disability is at least as likely as not (50 percent or greater probability) a result of (a) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or, alternatively, (b) an event not reasonably foreseeable. The examiner should review the surgical records as well as any consent forms of record in rendering the opinions requested. (Continued on the next page) The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.