Citation Nr: 22018268 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 16-02 323 DATE: March 28, 2022 REMANDED Entitlement to service connection for a neck disability, to include as secondary to a service-connected back disability is remanded. REASONS FOR REMAND The Veteran honorably served on active duty in the United States Army from August 1974 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in March 2019, November 2019, and April 2020. The Board denied the Veteran's claim in May 2021 decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). The parties filed a joint motion for partial remand (JMPR) and CAVC granted the motion in February 2022. This matter is now properly before the Board. Entitlement to service connection for a neck disability, to include as secondary to a service-connected back disability. Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure compliance with prior November 2020 Remand directives. CAVC found that the Board had previously failed to ensure substantial compliance with its November 2020 Remand directives. The November 2020 Remand indicated that there was a lack of adequate medical examination and instructed the RO to obtain an addendum medical opinion that "must consider lay reports of observable symptomatology." Specifically, the Court pointed to the Veteran and his spouse's statements "of consistent neck pain since service." Upon review of the claims file the Board finds that the November 2020 examiner failed to adequately address the Veteran's and his spouse's lay statements as requested in the November 2020 Remand. The November 2020 examiner stated that all pertinent records were reviewed including the Veteran's lay statements. While noting that lay statements were reviewed, they were not "considered and discussed" as required when formulating the opinion. As such, a new opinion is required before appellate review may proceed. The matters are REMANDED for the following action: 1. Obtain any outstanding, relevant treatment records and associate them with the claims file. 2. Obtain an addendum opinion from the November 2020 VA examiner, and if the November 2020 examiner is unavailable then refer the Veteran to a qualified VA medical professional, to provide a well-reasoned addendum opinion. A new in-person examination is not requested unless deemed necessary by the examiner assigned to this case. The examiner must review the entire claims file, including a copy of this remand. The examiner must consider and discuss the Veteran's lay reports of observable symptomatology specifically the competent assertions of consistent neck pain since service. The mere mention of having seen lay reports is insufficient. Without this consideration the Board is unable to proceed. After a thorough review of the record is complete, the examiner must respond to the following: (a) List any and all diagnoses pertaining to the Veteran's neck disability. For each identified diagnosis, opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's identified diagnosis had its onset during active-duty service, is related to an incident of service, or began within one year after discharge from active service. Provide a thorough rationale for this conclusion and include discussion of the Veteran's lay reports of related symptomatology. (b) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran's neck disability was caused by or aggravated by his service-connected back disability? Provide a thorough rationale for this conclusion and include discussion of the Veteran's lay reports of related symptomatology. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided, without which the Board is unable to proceed. If an opinion cannot be provided without resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 3. Then, the RO should readjudicate the issues on appeal. If the decision remains adverse to the Veteran, the Veteran and his representative should be furnished with an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.