Citation Nr: 21009178 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 15-08 113 DATE: February 19, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a migraine headache disability, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran had active service from November 1988 to December 1990. The June 2018 Board of Veterans’ Appeals (Board) decision remanded this matter for further evidentiary development. After carefully considering this matter, and for reasons expressed immediately below, the Board finds that this case must again be remanded for further development. The Board sincerely regrets the delay associated with this remand but finds that a remand is necessary to ensure that the Veteran is accorded full compliance with VA’s statutory duty to assist. Service connection for a cervical spine disability Pursuant to the Board’s June 2018 remand, the Veteran was accorded a new VA examination in August 2020. Unfortunately, the Board finds this examination to be inadequate. Specifically, while the examination report provides a negative nexus opinion and discussed the Veteran’s cervical spine MRI reports, it did not discuss the Veteran’s statements regarding the onset of his cervical spine symptoms. Specifically, and in this regard, the Board acknowledges that the August 2020 VA examiner opined that the Veteran’s cervical spine disability was not related to his military service because the medical records did not note a cervical neck condition or complaint during the Veteran’s active service and because the first documentation of complaints of neck pain appears to have occurred in 2003, approximately 20 years from the initial in-service fall. Importantly, however, the examiner did not discuss the Veteran’s contention that the in-service fall caused injury to his back and neck and that the Veteran has attested to a continuity of symptoms since that time. Instead, the examiner relied solely on the absence of reports in the record as the basis for the opinion. Accordingly, the Board finds the August 2020 examination to be inadequate for adjudication purposes because the examiner failed to consider the Veteran’s lay statements in rendering an opinion. As such, an additional VA examination must be provided. Given the inadequacies of the August 2020 VA examination, a remand for corrective action is necessary, to include providing the Veteran a new VA examination that adequately addresses the current nature, extent, and etiology of his claimed neck condition. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action.  Id.  Substantial compliance with the remand order, not strict compliance, is required.  Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision.  Stegall, 11 Vet. App. at 271. Service connection for a migraine headache disability, to include as secondary to a service-connected disability An August 2020 VA examination found that the Veteran did not have a chronic headache disability. Subsequently, however, the Veteran (through his representative) has continued to assert that he (the Veteran) still experiences headaches on a regular basis. Accordingly, and in light of the need to remand this appeal to accord the Veteran a VA examination with regard to his neck complaints, the Board finds that the issue of entitlement to service connection for a migraine headache disability should also be remanded for a clarifying VA examination. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any cervical spine disability he may have. The claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings found on examination to be associated with this disability must be reported in detail. The examiner should opine: (a.) whether a diagnosis of a cervical spine disability is warranted based on current examination or based on medical records received during the current appeal, and, if so, (b.) whether it is at least as likely as not (50 percent or greater probability) that any diagnosed cervical spine disorder onset in, or is otherwise related to, the Veteran’s active service? In answering this question, the examiner should discuss the Veteran’s cervical spine MRI reports as well as his lay statements regarding his continuity of neck symptoms. Should the examiner state that he or she is unable to offer any such opinion without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information—i.e. frequency, duration, characteristics, severity, or functional loss—regarding the Veteran’s flare-ups by alternative means. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 2. Also, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any chronic headache disability he may have. The claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings found on examination to be associated with this disability must be reported in detail. The examiner should opine: (a.) does the Veteran have a migraine headache disability on current examination or based on medical records received during the current appeal, and, if so, (b.) whether it is at least as likely as not (50 percent or greater) that any diagnosed chronic headache disability (to include migraines) onset in, or is otherwise related to, the Veteran’s active service? In answering this question, the examiner should discuss the Veteran’s lay statements regarding his continuity of headache symptoms; (c.) also, whether it is at least as likely as not (50 percent or greater) that any diagnosed chronic headache disability was caused or aggravated (worsened) by his cervical spine disability? If aggravation is found, the examiner should identify the baseline level of severity of the migraine headache disorder before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the migraine headache disorder. 38C.F.R.§3.310. Should the examiner state that he or she is unable to offer any such opinion without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information—i.e. frequency, duration, characteristics, severity, or functional loss—regarding the Veteran’s flare-ups by alternative means. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. R. Bobb, 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.