Citation Nr: 20004158 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 13-30 383 DATE: January 16, 2020 REMANDED Entitlement to service connection for a right hand disability is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States navy from February 1968 to October 1969. In September 2017 and April 2018, Veterans’ Law Judges other than the undersigned remanded the appeal for additional development. Entitlement to service connection for a right hand disability is remanded. While the Board of Veterans’ Appeal (Board) regrets the additional delay being caused by yet another remand, it nonetheless finds that it is needed because of both a change in the law and the inadequacy of the May 2019 Veterans' Administration (VA) examiner’s opinion. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Specifically, a review of the record on appeal reveals that in April 2018 the Board remanded the appeal to obtain adequate medical opinions as to whether the current right hand disabilities seen in the record (i.e., right hand strain and carpal tunnel syndrome) are directly due to the Veteran’s military service, to include the same accident that caused his already service-connected right forearm scar, as well as whether they were caused or aggravated by the claimant’s service-connected right forearm scar. See 38 C.F.R. §§ 3.303, 3.310; El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). However, while the appeal was in Remand status the United States Court of Appeals for Veterans Claims (Court) in Ward v. Wilkie, No.16-2157__Vet.App.__, 2019 U.S. App. Vet. Claims LEXIS 994 at *15 (Jun. 14,2019) changed its’ long standing definition of aggravation. Specifically, the Court in Ward redefined the definition of aggravation to know include a temporary worsening of a disability. See also 38 C.F.R. § 3.310(b). Moreover, the May 2019 VA examiner’s opinion did not clearly address whether either of the Veteran’s current right hand disabilities (i.e., right hand strain and carpal tunnel syndrome) were directly due to the Veteran’s military service, to include the same accident that caused his already service-connected right forearm scar, caused by the right forearm scar, or aggravated by the right forearm scar applying the new definition of aggravation. Therefore, the Board finds that another remand to obtain adequate etiology opinions is needed. See 38 U.S.C. § 5103A(d); Barr, supra. While the appeal is in remand status, the agency of original jurisdiction (AOJ) should also obtain and associate with the record any outstanding VA and private treatment records. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran or his representative should submit and new pertinent evidence the Board/VA does not have (if any). 3. Thereafter, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his right hand disabilities (i.e., right hand strain and carpal tunnel syndrome). The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that either right hand disability (i.e., right hand strain and carpal tunnel syndrome) was caused by the Veteran’s military service to include in the same accident that caused his already service-connected right forearm scar. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that either right hand disability (i.e., right hand strain and carpal tunnel syndrome) was caused by the Veteran’s service-connected right forearm scar. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that either right hand disability (i.e., right hand strain and carpal tunnel syndrome) was aggravated by any of the Veteran’s service-connected right forearm scar. In providing answers to the above questions, the examiner should consider and discuss the service treatment records. In providing answers to the above questions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion, the examiner should be aware of the facts that the Court recently held in Ward, supra, that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.