Citation Nr: 21008264 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 12-01 234 DATE: February 12, 2021 REMANDED Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for lumbar spine disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to an earlier effective date for individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from August 1966 to August 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from February 2009, September 2015, and August 2017 rating decisions by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). In October 2019, on a substantive appeal, a Board hearing was requested with regard to the issues of service connection for lumbar disability, cervical disability, and an earlier effective date for TDIU. However, in several subsequent submissions, involving the spine and TDIU as well as hypertension, the Veteran, along with his representative, stated he did not desire a hearing. As such, the Board will proceed with adjudication at this time. In November 2016 and December 2017, the Board remanded the issues of entitlement to service connection for lumbar disability, cervical disability, and an earlier effective date for TDIU for additional development. VA neck and back examinations were completed in June 2019 and corresponding medical opinions were obtained in July 2019. A subsequent development letter was provided to the Veteran in May 2019, and the matter is again before the Board. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. The Board finds that the Agency of Original Jurisdiction (AOJ) did not substantially comply with the December 2017 remand directives. As such, another remand is warranted. Lumbar and Cervical Back Disabilities In statements from the Veteran and his sister, it was specifically reported that he was treated at St. Albans Naval Hospital in Queens, New York, while in-service. Although service treatment records do not appear to specifically contain these records, there is a note in August 1968 records confirming that the Veteran had been seen at St. Albans for back pain. As such, attempts should be made to obtain these records, as clinical (in-patient) records are maintained separate from the Veteran’s personal treatment file. Furthermore, the medical opinions obtained in July 2019 are also insufficient. In the neck opinion, the examiner’s rationale focused primarily on the Veteran’s in-service treatment records, noting that they contain no specific treatment for the cervical spine and that the mid-back injury in 1968, which was self-limiting, would not cause cervical spine pathology. In the back opinion, the rationale focused on the 1968 mid-back injury. The examiner reiterated that it was self-limiting and only required one follow-up appointment. She concluded that it was at least as likely as not an acute event with no longterm sequela, since the Veteran denied back problems in the exit examination and did not complain of back pain again until 1989. She stated that the minor injury in 1968 would not cause the pathology that the Veteran is currently experiencing in 2019. However, the examiner did not address several matters that were specifically included in the remand instructions. For example, the examiner did not discuss the Veteran’s reported fall from horizontal bars during basic training, his contentions of ongoing back pain since service, or the September 2008 medical statement from Dr. RR which reported that the Veteran had complained of back pain and been treated for such as early as 1969. Additionally, although it was not noted in the previous remand instructions, there is an undated Individual Sick Slip that notes an impression of recurrent post traumatic back pain and additional service treatment records from 1966 which indicate that the Veteran has a sore back. During the July 2019 opinions, the examiner only noted having reviewed the February and August 1968 service treatment records. Accordingly, upon remand, an addendum medical opinion should be obtained. Hypertension In a December 2015 rating decision, the Veteran was granted service connection for diabetes mellitus, type II, on a presumptive basis due to Agent Orange exposure. The Veteran was afforded a VA hypertension examination in June 2017 and an addendum opinion was obtained in August 2017, at which time the examiner opined that it was less likely than not that the Veteran’s hypertension was aggravated beyond its natural progression by his service-connected diabetes mellitus. However, no opinion has been obtained considering whether the Veteran’s hypertension is causally related to his presumptive exposure to Agent Orange. In light of recent findings by the National Academy of Sciences (NAS) regarding a potential link remand for examination and opinion is necessary. As such, upon remand, the Veteran should be afforded an additional examination to consider whether his hypertension is related to his presumed in-service herbicide exposure. TDIU The Veteran has consistently contended that his lumbar and cervical disabilities contributed to his unemployability and has provided statements from prior employers supporting this. As noted in the prior Board remands, the Veteran’s claim for entitlement to TDIU prior to May 15, 2014, is inextricably intertwined with the claims of service connection for lumbar and cervical disability. Accordingly, the Board defers decision on whether TDIU is warranted prior to May 15, 2014. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Request the clinical records for any treatment of the Veteran at the St. Alban’s U.S. Naval Hospital from June to August 1968. 2. Obtain an addendum opinion regarding the Veteran’s lumbar and cervical disability claims. The claims folder must be reviewed in conjunction with the opinion. An additional VA examination may be provided if deemed appropriate. The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical and lumbar spine disabilities are caused or aggravated by service. In rendering the opinion, the examiner must discuss: a) the Veteran’s report of falling and hurting his back while completing a training course on the horizontal ladder while in service; b) the Individual Sick Slip in the service treatment records noting an impression of recurrent post traumatic back pain and October 1966 complaint of a sore back; c) service treatment records from February and August 1968 showing treatment for lumbar thoracic spine pain; d) the Veteran’s contentions of ongoing back pain since service; e) an August 2008 statement from Dr. RM that the Veteran had been treated since 1989 for lumbar and cervical spine issues and f) the September 2008 statement from Dr. RR that the Veteran had been treated for back pain since 1969. A full and complete rationale must be provided for all opinions expressed. 3. Schedule the Veteran for a VA hypertension examination; the claims file must be reviewed by the examiner. The examiner should provide an opinion as to whether the Veteran's hypertension is at least as likely as not caused or aggravated by the Veteran's in-service exposure to herbicide. Recent NAS findings and UpToDate reports indicating the possibility of such must be discussed. 4. Then, readjudicate the claims, to include entitlement to TDIU. If the benefits sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.