Citation Nr: 21021113 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 15-05 328 DATE: April 9, 2021 REMANDED Entitlement to service connection for a neck disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1961 to May 1965. This matter comes before the Board of Veterans Appeals’ (Board) from a September 2013 rating decision issued by the Agency of Original Jurisdiction (AOJ). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in November 2016. A transcript of that hearing has been associated with the record. The issue was previously before the Board in June 2018, November 2019, and February 2021. In November 2019, the Board remanded the above matters to the AOJ for further evidentiary development, which included providing an adequate VA medical opinion regarding the Veteran’s claim for service connection for a neck disability. The Veteran was provided a VA examination and a new VA medical opinion was associated with the file in November 2019. The claim was most recently remanded in February 2021 for issuance of a supplemental statement of the case (SSOC). The Board is obligated by law to ensure that the AOJ complies with its directives; 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. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AOJ has complied with some of the Board’s remand directives. Unfortunately, when it comes to the Veteran’s claim for service connection for a neck disability the VA opinion provided has been found inadequate. Entitlement to service connection for a neck disability is remanded. Regrettably, a remand is necessary for further evidentiary development of the Veteran’s claim for service connection for a neck disability. The November 2020 VA opinion is inadequate. In the opinion provided regarding the Veteran’s neck disability, the examiner summarily dismissed the Veteran’s statement regarding his neck disability. The Board’s remand specifically cautioned that, “the absence of evidence in service treatment records is an insufficient basis, by itself, for a negative opinion.” Despite this caution the examiner provided the following rationale for her negative nexus opinion: “[the] Veteran attributes neck pain to an incident in which he was struck in the head by a tree limb; however review of the STR does not show documentation of the incidence. Without evidence to support the [V]eteran’s specific claim examiner is unable to support a causal relationship between service and current neck condition.” The Veteran has linked his neck disability to the described in-service incident where he was struck in the head with a tree limb. The Veteran has stated that he sustained a laceration to the head. See November 2016 Hearing Transcript. A June 1962 service treatment record (STR) reflects that the Veterans sustained a laceration to his head. While the STR does not indicate how the laceration came about, the November 2020 examiner did not provide any medical basis to doubt the Veteran’s reports. Moreover, the examiner’s rationale reveals an incomplete review of the file as the in-service incident described by the Veteran has been conceded by the VA. See June 2018 Board Decision. Additionally, the examiner failed to address statements concerning the chronicity of care provided by the Veteran’s wife, a Registered Nurse, even though she was instructed to do so. As such, the Board finds that there has not been substantial compliance with the Board June 2018 remand directives and an addendum opinion is required. See Stegall, supra. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. 2. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 3. Thereafter, the AOJ should forward the entire claims file in electronic records to a suitably qualified VA examiner. If additional examination is indicated, it should be scheduled in accordance with applicable procedures and all indicated studies should be performed. The claims file must be available to and be reviewed by the examiner, to include any newly obtained evidence as a result of the above ordered development. The examiner should provide an opinion regarding the nature and etiology of the Veteran’s neck disability, which addresses the Veteran’s service treatment records, post-service medical records, and lay statements. 4. The examiner should render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any neck disability is related to service or any incident therein. Of importance, the examiner MUST address the Veteran’s reports of neck pain from digging ditches and laying pipes in service, his reports of neck trauma from being struck with a tree limb, as well as his reports of post-service treatment from his wife, a Registered Nurse. These factors MUST be reconciled with any negative opinion provided. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would. 5. After ensuring compliance with these objectives, the AOJ should readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.