Citation Nr: 21013534 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 11-14 290 DATE: March 9, 2021 REMANDED The issues of entitlement to service connection for a lumbar spine disorder and a neck disorder are remanded for additional development. REASONS FOR REMAND The Veteran served on active duty from October 1962 to March 1967. These matters are before the Board of Veterans’ Appeals (Board) on appeal from November 2009 and January 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2009, the Veteran filed a timely notice of disagreement with respect to the November 2009 rating decision which continued the denial of service connection for the lumbar spine disorder and subsequently perfected his appeal as to that issue. During the course of the appeal, relevant service treatment records were added to the Veteran’s file. As a result, the lumbar spine claim, which was previously characterized as a claim to reopen (based on a previous denial of the claim in July 1981), was reconsidered as an initial claim and has been recharacterized to reflect the Board’s de novo review. See 38C.F.R.§3.156(c). In January 2015, the Veteran filed a timely notice of disagreement with respect to the January 2015 rating decision which denied service connection for a neck disorder and a jaw disorder. In August 2015, the Board remanded the case for further evidentiary development. In July 2016 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In October 2016, the Board again remanded the case for further evidentiary development. In November 2017, the Board denied the benefits sought on appeal. In August 2018, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). The Court granted a joint motion for remand (JMR) that same month, vacating the November 2017 Board decision, and remanding the matter for additional proceedings consistent with the JMR. In December 2018, the Board again remanded the case for further evidentiary development. As the requested development has not been completed, however, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). In a January 2021 rating decision, the RO granted service connection for a temporomandibular joint condition assigning a rating of 10 percent effective December 27, 2013. As the Veteran has not yet appealed his initial rating assignment or his effective date of service connection, the Board finds that this grant of service connection constitutes a full award of the benefit sought on appeal with respect to the issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. Entitlement to service connection for a lumbar spine disorder. Entitlement to service connection for a neck disorder. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. The Board remanded this appeal in December 2018 so that the Agency of Original Jurisdiction (AOJ) could obtain an addendum VA medical opinion, and then readjudicate the Veteran’s claim for service connection for a lumbar spine disorder and neck disorder, in accordance with the August 2018 JMR. January 2021, the AOJ issued a supplemental statement of the case (SSOC) continuing to deny service connection for a lumbar spine disorder and neck disorder. By way of history, the August 2018 JMR found that the November 2017 Board decision failed to ensure compliance with the October 2016 remand instructions. The October 2016 Board remand requested new medical opinions addressing the Veteran’s cervical and lumbar spine conditions and directed that the examiner comment on the significance of back injuries and complaints of neck pain following the 2000 and 2002 post-service injuries. The JMR noted that neither of the subsequent August 2017 VA opinions for the lumbar and cervical spine conditions addressed the 2000 post-service incident. Accordingly, a remand was warranted for adequate opinions that comply with the October 2016 remand instructions by addressing the Veteran’s 2000 post-service injuries. In its November 2017 decision, the Board found the August 2017 lumbar spine VA examination highly probative, which opined that the Veteran’s back pain in service was solely due to a right 8th posterior rib fracture. However, the JMR indicated that the Board failed to address a clinical record from December 1965 which, though it diagnosed a right rib fracture, noted that the Veteran’s back injury in service involved generalized abrasions and contusions and a left paravertebral muscle spasm and tenderness in the left flank. In its December 2018 remand, Board indicated that the VA examiner must address the discrepancy between the 2017 examination’s finding that the Veteran’s back pain was solely due to the right rib fracture and the 1965 clinical record’s report that he had tenderness and muscle spasms on the left side as well. Pursuant to the December 2018 remand, the Veteran was afforded another VA examination and medical opinion in October 2019. The VA examiner opined that the Veteran’s neck and lumbar spine disorders were less likely than not related to service. The VA examiner reasoned that the Veteran’s in-service back injuries were not due to injuries to the back or spine but due solely to a right posterior eighth rib fracture due to the in-service motor vehicle accident. He concluded that the Veteran’s reports of sore back and lower back pain in service were due to his right posterior eighth rib fracture and surrounding soft tissue. As for the Veteran’s neck disorder, the examiner reasoned that the Veteran sustained several injuries during the in-service motor vehicle accident but that medical records at that time did not indicate cervical spine injuries. The examiner noted that the Veteran injured his neck in a 2001 job injury but did not explain how the injury was relevant in rendering a negative nexus opinion. The Board finds that this opinion is inadequate for essentially the same reasons the JMR found the August 2017 VA opinions inadequate. The examiner did not comment on or explain the significance of back injuries and complaints of neck pain following the 2000 and 2002 post-service injuries nor did he address whether the Veteran’s current neck and lumbar spine disabilities were caused or aggravated by his now service-connected temporomandibular joint condition or residuals of fractured eighth posterior rib. As such, the Board must again remand this matter to obtain and addendum opinion in compliance with the JMR. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Forward the claims file to a VA clinician, such as an orthopedist, for review. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. After reviewing the claims file, the clinician should respond to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current lumbar spine disorder is causally related to service, to include the residuals from the December 1965 motor vehicle accident? Please explain why or why not. In providing this opinion, the examiner should comment on the significance, if any, of the Veteran’s reports of experiencing back pain in-service following the accident, his service treatment records showing complaints of back pain in December 1965 and August 1966, and his 2000 and 2002 post-service back injuries. The examiner should also address the discrepancy between the 2017 examination’s finding that the Veteran’s back pain was solely due to the right rib fracture and the 1965 clinical record’s report that he had tenderness and muscle spasms on the left side as well. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current lumbar spine disorder is caused or aggravated by (increased in severity due to) his service-connected temporomandibular joint condition or residuals of fractured eighth posterior rib? Please explain why or why not. (c.) Is it at least as likely as not that the Veteran’s current cervical spine disorder is causally related to service, to include the residuals from the December 1965 motor vehicle accident? Please explain why or why not. In providing this opinion, the examiner should comment on the significance, if any, of the Veteran’s reports of experiencing neck pain following the accident, and the 2000 and 2002 post-service neck injuries. (d.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current neck disorder is caused or aggravated by (increased in severity due to) his service-connected temporomandibular joint condition or residuals of fractured eighth posterior rib? Please explain why or why not. (e.) A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.