Citation Nr: 21076584
Decision Date: 12/27/21	Archive Date: 12/27/21

DOCKET NO. 15-03 325
DATE: December 27, 2021

REMANDED

Entitlement to service connection for a neck condition is remanded.

REASONS FOR REMAND

The Veteran had active service from September 1969 to January 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In January 2019, November 2020, and May 2021, the Board remanded the Veteran's claim for further development.

1. Entitlement to service connection for a neck condition is remanded.

This issue was remanded in May 2021 so that a VA medical opinion could be obtained to address whether the Veteran's cervical condition clearly and unmistakably preexisted his service, was related to service, or was secondary to his service-connected lumbar spine disabilities.

The Veteran was afforded a VA examination in October 2021.  The examiner opined it is less likely than not the Veteran's cervical spine condition is related to service or service-connected lumbar spine disabilities.  This opinion reflects use of a "preponderance of the evidence standard" which is not the same as evidence required to satisfy the "clear and unmistakable" standard to rebut the presumption of soundness.  Accordingly, there has not been substantial compliance with the Board's Remand directives and the case must be returned for an addendum.

The examiner further remarked that neuro-imaging of the spine had never been performed.  The examiner indicated that neuro-imaging was needed to determine what the polio did to the Veteran's spine or if there was a bulging disc.  The examiner concluded that the Veteran needed a thorough investigation to determine this.  It does not appear that the appropriate diagnostic testing has taken place during the period on appeal, regarding the Veteran's cervical spine condition. As such, the Board finds that the duty to assist has been triggered because a VA examination, which includes the appropriate diagnostic testing, is required to decide the service connection claim for pulmonary hypertension.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination for his service spine disability.  The examiner must review the claims file.  All indicated diagnostic testing must be conducted.

The examiner is asked to provide a response to the following:

a)	Is it both clear and unmistakable that the Veteran's cervical spine disability preexisted entry into active service?

b)	If the Veteran's cervical spinal disorder preexisted service, is it both clear and unmistakable that the Veteran's spine disorder was not aggravated beyond the natural progress of the disorder by his service?

c)	If the examiner finds that cervical disorder either did not clearly and unmistakably preexist service or was not clearly and unmistakably not aggravated by service, is the current cervical disorder at least as likely as not related to service, including proximately due to or aggravated (beyond a natural progression) by his service-connected lumbar spine disability.? 

The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case.

  

 

 

Z. SAHRAIE

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Lauritzen, 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.