Citation Nr: 21024607 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-26 091 DATE: April 23, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1982 to May 1986. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded this appeal for further evidentiary development. Service connection for a cervical spine disability The October 2018 Board decision remanded this service connection claim to obtain outstanding private and VA treatment records and to accord the Veteran a new VA examination to determine the nature and etiology of his cervical spine disability. Upon VA examination in October 2019, the examiner diagnosed degenerative changes and stenosis of the Veteran’s cervical spine. The examiner recorded the Veteran’s reports of the onset of his neck pain, which he noted began in service when he was thrown across the deck after his ship was hit by a wave and continued since then. The examiner opined that it was less likely than not that the Veteran’s cervical spine disability was related to his military service because there were no complaints of, or treatment for, a cervical spine injury in his service treatment records (STRs). The examiner noted that, in addition to no documented injury, the Veteran’s separation examination did not include any reports of neck complaints and that his disabilities are more consistent with age-related changes. 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. The Board finds that the development conducted after the October 2018 remand is inadequate and that, as such, there has not been substantial compliance with the prior remand directives. Stegall, 11 Vet. App. at 271. It does not appear that the October 2019 VA examiner gave any consideration to the Veteran’s contentions in providing an opinion, despite recording his reports of an injury in service. While the Board agrees with the VA examiner that the Veteran’s STRs do not document any complaints of, or treatment for, a cervical spine disability, his STRs do document an incident involving his ship “t[aking] a roll” in some rough seas in January 1986 and his complaints of other bodily injuries. The examiner made no mention of this incident despite indicating a review of the claims file and the Veteran’s recorded recollections of this incident in the examination report which is consistent with the documented in-service incident. Given the inadequacies of the October 2019 examination opinion, the Board finds that there has not been substantial compliance with the October 2018 Board remand directives and that corrective action is, therefore, necessary. On remand, an additional VA examination and opinion should be obtained to assess the nature and etiology of any currently diagnosed cervical spine disability. Accordingly, this matter is REMANDED for the following action: 1. Schedule an appropriate examination to determine the nature and etiology of any cervical spine disability that the Veteran may have, to include cervical spine stenosis and degenerative changes of the cervical spine. The examiner should review the claims folder and indicate such on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the examination report. All relevant cervical spine pathology shown on examination should be annotated in the examination report. After review of the claims folder, as well as an interview with, and examination of, the Veteran, the examiner is asked to:  a. Identify/diagnose any cervical spine disability that presently exists or that has existed during the appeal period.  b. Opine as to whether it is at least as likely as not (a 50 percent or greater probability), that any such diagnosed cervical spine disability onset in, or is otherwise etiologically related to, his service. In other words, is any diagnosed cervical spine disability consistent with the Veteran’s reported in service experiences? In expressing these opinions, the examiner is asked to consider and address the Veteran’s contentions of having injured his neck when his ship hit a wave and he was thrown across the deck. In this regard, although no neck disability is noted in the Veteran’s STRs, these STRs do document his complaints of other issues in January 1986 after the ship he was on rolled in rough seas. 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. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.