Citation Nr: 20046479 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 14-35 044 DATE: July 13, 2020 REMANDED Entitlement to a rating in excess of 20 percent prior to April 5, 2019, and in excess of 40 percent thereafter, for a lumbar spine disability is remanded. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected lumbar spine disability, is remanded. Entitlement to service connection for a neurological disorder of the bilateral upper extremities, to include carpal tunnel syndrome, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1974 to August 1994. On appeal is a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2017. A transcript of that hearing has been associated with the Veteran’s claim file. After the hearing, the Board of Veterans’ Appeals (Board), in a March 2018 decision, remanded for additional development. The requested development having been conducted, the claims are now properly before the Board for adjudication. 1. Entitlement to a rating in excess of 20 percent prior to April 5, 2019, and in excess of 40 percent thereafter, for a lumbar spine disability is remanded. The Veteran was issued a supplemental statement of the case (SSOC) regarding his increased-rating claim in February 2020. Since the issuance of the SSOC, additional information, in the form of a VA examination dated in March 2020 as well as records regarding the Veteran’s claim for benefits from the Social Security Administration (SSA), were associated with the claims folder. The additional information is relevant to the Veteran’s increased rating claim on appeal and was not considered by the RO as required under 38 C.F.R. § 19.31(b)(1). The Board notes that initial RO review is automatically waived for evidence submitted by the Veteran or his representative if the Veteran’s appeal to the Board is dated after February 2, 2013, as it is in this case. However, this automatic waiver does not apply to VA-generated evidence, such as VA examination reports that were not submitted by the Veteran. 38 U.S.C. § 7105 (e). Further, waiver of the right to a SSOC that considers additional evidence is only applicable to evidence submitted by the Veteran or his representative, not evidence that is obtained by VA, as the VA examination report and SSA records were here. See 38 C.F.R. § 20.1304. Accordingly, the increased rating claim must be remanded for consideration of the additional evidence and issuance of an SSOC. See 38 C.F.R. §§ 19.31, 19.37. 2. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected lower back disability, is remanded. As noted above, in March 2018, the Board remanded this issue for a VA examination to thoroughly address the nature and etiology of the Veteran’s bilateral knee disability. A new VA examination was obtained in April 2019, but the Board finds the examiner’s opinion to be internally inconsistent on direct service connection (opining it is less likely than not the bilateral knee disability had its onset in service, but also stating later that the conditions likely began during service) and inadequate on secondary service connection, as it did not address aggravation. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, on remand, an addendum opinion should be obtained. 3. Entitlement to service connection for a neurological disorder of the bilateral upper extremities, to include carpal tunnel syndrome, is remanded. As noted above, in March 2018, the Board remanded this issue for a VA examination to thoroughly address the nature and etiology of the Veteran’s claimed neurological disorder of the bilateral upper extremities. A new VA examination was obtained in April 2019, but the Board finds the examiner’s opinion to be internally inconsistent. Clarification is needed as to whether there is an upper extremity neurological disorder, and if so, whether it is related to service, to include consideration of functional impairment due to pain under Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, on remand, an addendum opinion should be obtained. The matters are REMANDED for the following action: 1. Obtain an addendum opinion, or in-person examination or telehealth interview if deemed necessary, from a qualified medical professional to determine the nature and etiology of the Veteran’s claimed bilateral knee disability. After reviewing the claims file, the reviewer must provide a thoroughly reasoned opinion as to each of the following: (a) Whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran’s bilateral knee disability had its onset in service, within one year of service separation, or is otherwise related to service. In rendering this conclusion, the examiner must specifically discuss the Veteran’s report of in-service onset of symptoms and their continuity thereafter, as well as the documented knee complaints during service. (b) Whether it is at least as likely as not that the Veteran’s bilateral knee disability is proximately due to or caused by his service-connected lumbar spine disability. (c) Whether it is at least as likely as not that that the Veteran’s bilateral knee disability has been aggravated (permanently worsened beyond the natural progress of the disorder) by his service-connected lumbar spine disability. 2. Obtain an addendum opinion, or in-person examination or telehealth interview if deemed necessary, from a qualified medical professional to determine the nature and etiology of the Veteran’s claimed neurological disorder of the upper extremities, to include carpal tunnel syndrome. After reviewing the claims file, the reviewer must clarify whether the Veteran has a current diagnosis of an upper extremity neurological disorder, to include carpal tunnel syndrome. In providing this clarification, the examiner must be mindful of the finding of Saunders v. Wilkie, which found that pain alone can constitute a ratable disability if such pain causes functional impairment of earning capacity. For each such disability diagnosed, to include any functional impairment due to pain, the examiner must provide a thoroughly reasoned opinion as to whether it is at least as likely as not (a fifty percent probability or greater) that such neurological disorder had its onset in service or is otherwise related to service. In rendering this conclusion, the examiner must specifically discuss the Veteran’s report of in-service onset of symptoms and their continuity thereafter. 3. Review the record and any newly submitted evidence associated with the file following the issuance of the February 2020 SSOC (including the March 2020 VA examination and SSA treatment records associated with the claims file), and then re-adjudicate the claims on appeal. Caroline Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts, 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.