Citation Nr: 21024489 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-12 426 DATE: April 22, 2021 REMANDED Entitlement to service connection for a neck disability is remanded. REASONS FOR REMAND The Veteran had active military service from August 2001 and April 2002, August 2004 to January 2009, and May 2009 to March 2012. His awards and decorations include the Combat Infantryman Badge. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January and June 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2018. This case was previously before the Board in July 2018 and July 2020, at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. Pursuant to the Board’s July 2020 remand, the Veteran was afforded a VA examination in November 2020. The Veteran was diagnosed with degenerative arthritis of the spine. The examiner opined that it was less likely than not that the Veteran’s neck disability was incurred in or caused by his active service. The examiner noted that there was no reference to the Veteran experiencing or receiving treatment for neck pain during service found in the record. The examiner further noted that the Veteran’s entrance examination documented that he had a normal spine. In a February 2021 VA addendum opinion, a different VA examiner clarified that the Veteran’s neck disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by his active service. The examiner found no reference to the Veteran experiencing or receiving treatment for neck pain during service. The Board finds that the development conducted does not adequately comply with the July 2020 Board remand directives. Specifically, the examiner failed to identify all neck disabilities present during the pendency of the claim, or proximate thereto. Further, the examiner erroneously relied on the lack of medical treatment of neck pain during service alone to determine that the Veteran’s neck disability was clearly and unmistakably not aggravated during his active service. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, an additional VA examination is warranted. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present neck disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should first identify all neck disabilities present during the pendency of the claim, or proximate thereto. (a.) Then, for each neck disability identified, even if currently resolved, the examiner should state whether the disability clearly and unmistakably existed prior to the Veteran’s active service. In responding to that question, the examiner is advised that “clear and unmistakable” means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. Additionally, the Veteran’s lay statements alone are not sufficient upon which to base a finding that a disability clearly and unmistakably preexisted service. (b.) If an identified neck disability clearly and unmistakably existed prior to service, the examiner should provide an opinion as to whether such disability was clearly and unmistakably NOT aggravated by the Veteran’s active service. The examiner must specifically address the December 2005 post-deployment examination documenting that wearing body armor and Kevlar may have contributed to the Veteran’s neck pain and a November 2011 Medical Evaluation Board determination that the Veteran could no longer execute service-related tasks requiring significant prolonged movement in full combat gear, lifting, and carrying. Additionally, the examiner must comment on the Veteran’s lay assertions that a surgical procedure corrected his work-related neck disability in or around the 1990s and the combined effects of carrying heavy gear, performing combat duties, and sustaining a head injury during an IED explosion led to his neck disability, status post-surgery, to specifically include neck strain and limited range of motion. (c.) If an identified neck disability did NOT clearly and unmistakably exist prior to service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the neck disability is etiologically related to the Veteran’s active service. The examiner must specifically address the December 2005 post-deployment examination documenting that wearing body armor and Kevlar may have contributed to the Veteran’s neck pain and a November 2011 Medical Evaluation Board determination that the Veteran could no longer execute service-related tasks requiring significant prolonged movement in full combat gear, lifting, and carrying. Additionally, the examiner must comment on the Veteran’s lay assertions that a surgical procedure corrected his work-related neck disability in or around the 1990s and the combined effects of carrying heavy gear, performing combat duties, and sustaining a head injury during an IED explosion led to his neck disability, status post-surgery, to specifically include neck strain and limited range of motion. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.