Citation Nr: 21075088
Decision Date: 12/17/21	Archive Date: 12/17/21

DOCKET NO. 18-14 931
DATE: December 17, 2021

REMANDED

Entitlement to service connection for a neck disability, to include as secondary to service-connected back disability, is remanded.

Entitlement to a temporary total evaluation following December 2016 neck surgery is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1973 to July 1976.

The matter was most recently remanded in May 2021 and has returned to the Board for further adjudication. The claims must be remanded for an adequate opinion. Stegall v. West, 11 Vet. App. 268 (1998).

The August 2021 opinion and September 2021 addendum are inadequate because they are essentially just a reiteration of a prior inadequate opinion and are not responsive to the Board's specific directives. 

The claim for a temporary total rating is remanded because it is inextricably intertwined with the service connection claim.

The matters are REMANDED for the following action:

1. Forward copies of all pertinent records to another appropriate examiner to determine the likely etiology of diagnosed neck disability.  

Based on a review of the record, the examiner must answer the following:   

(a) Is it at least as likely as not that any currently diagnosed neck disability is proximately due to (caused by) the Veteran's service-connected back disability? 

(b) If (a) is answered no, is it at least as likely as not that any currently diagnosed neck disability has been aggravated by (defined as any increase in disability) the Veteran's service-connected back disability? 

In providing the opinion, the examiner MUST specifically consider and discuss as necessary records related to his December 2016 neck surgery and any neck disability to include spondylotic myelopathy, as well as the Veteran's testimony that neurosurgery informed or implied that the Veteran's neck disability is related to his back disability. The examiner is reminded that the opinion is NOT whether the December 2016 surgery was improperly done.

The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. 

The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.

2. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum.

 

M.E. Larkin

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Jarman, 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.