Citation Nr: 21032368 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-64 109 DATE: May 26, 2021 REMANDED Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran had active service from June 1977 to June 1981. In October 2019, he testified at a hearing before the undersigned Veterans Law Judge (VLJ). In August 2020, the Board of Veterans' Appeals (Board) granted service connection for a left knee disability, a right knee disability, and a lumbar spine disabilityand also remanded for further evidentiary development claims for service connection for a gastrointestinal disorder, residuals of an in-service frostbite injury to the lower extremities, and a cervical spine disability. On remand, the Regional Office (RO) granted service connection for a gastrointestinal disorder and for residuals of an in service frostbite injury to the lower extremities. Accordingly, the only issue remaining on appeal is the claim for service connection a cervical spine disability. With regard to the claim for service connection for a cervical spine disability, the August 2020 Board remand instructed the RO to schedule the Veteran for a VA neck examination that includes etiological opinions (on direct and secondary service connection bases). This requested VA examination and etiological opinions were obtained in November 2020. Subsequent addendum opinions were also obtained in January 2021 to address deficiencies in opinions initially rendered by the VA examiner. The initial nexus opinions obtained in November 2020 were inadequate, as the examiner included an opinion that the condition pre-existed active service, when it clearly did not. The direct service connection opinion failed to address the Veteran's reported in-service injury as well as his lay reports made on examination that the condition began in the 1970s or 1980s. The secondary service connection opinion rendered as to whether the Veteran's cervical spine disability was secondary to his service-connected lumbar spine disability was also inadequate. Further, no opinion was rendered as to whether the Veteran's cervical spine disability was secondary to his service-connected bilateral knee disabilities. The addendum opinions obtained in January 2021 were also insufficient to cure the inadequacies of the November 2020 opinions. First, the examiner said it would be speculative to opine as to whether the Veteran's cervical spine disability was related to his reported in-service injury because she could not find documentation of the injury. Thus, she again ignored the Veteran's competent lay reports of the onset of his injury as well as the possibility that, regardless of documentation, the in-service event could have caused his current cervical spine arthritis. She also was unable to opine on the secondary service-connection issues without discussing the medical possibility of a relationship between the Veteran's cervical spine arthritis and his lumbar spine and bilateral knee disabilities, stating that there was not enough information in the record regarding a post-service cervical spine injury to make such determinations. However, such information could have been obtained directly from the Veteran during the initial examination, as he would be competent to report on the details of a post-service cervical spine injury he experienced through his senses. Further, the examiner used the incorrect legal standard for the secondary aggravation opinions, that of "aggravation beyond the natural progression," rather than aggravation that simply made the condition worse. Compliance with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board errs as a matter of law when it fails to ensure compliance with remand orders. Id. As the RO was unable to comply with the directive of the 2020 Board Remand (albeit not due to fault on the RO, as the RO clearly tried multiple times to obtain opinions which complied with the directive), the Board has no recourse but to remand this issue again to ensure that the previously requested development is completed. Id. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for a VA examination by an examiner other than the one who performed the November 2020 neck conditions examination and who provided the January 2021 addendum opinions in this matter, to determine the nature and etiology of the Veteran's cervical spine disability. The examiner is asked to identify every cervical spine condition with which the Veteran has been diagnosed during the pendency of the appeal (from December 2011 to present) and respond to the following questions for each such diagnosed condition: (a.) Is it at least as likely as not (i.e., 50 percent probability or greater) that the diagnosed cervical spine disability had its onset during the Veteran's active service or was otherwise related to his active service, to include as a result of his having been thrown around while riding in tanks over rough terrain in service? (b.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed cervical spine disability was caused by the Veteran's service-connected lumbar spine disability? (c.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed cervical spine disability was caused by the Veteran's service-connected bilateral knee disability? (d.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed cervical spine disability was aggravated (i.e., made worse) by the Veteran's service-connected lumbar spine disability? If so, the examiner should identify the degree of impairment that is due to such aggravation. (e.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed cervical spine disability was aggravated (i.e., made worse) by the Veteran's service-connected bilateral knee disability? If so, the examiner should identify the degree of impairment that is due to such aggravation. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 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 C. Davidoski, 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.