Citation Nr: 20053586 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 13-33 292 DATE: August 12, 2020 REMANDED Entitlement to service connection for low back disorder is remanded. Entitlement to service connection for nasal disorder is remanded. Entitlement to service connection for right eye disorder is remanded. REASONS FOR REMAND The Veteran had active service from June 1961 to June 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In May 2010 and September 2013, the Veteran testified before Decision Review Officers (DROs) on the issues on appeal. In September 2016, the Veteran testified before the undersigned at a video conference hearing conducted via the Atlanta, Georgia RO. In a July 2017 BVA decision, the issues of service connection for low back disorder, nasal disorder, and right eye disorder were reopened and remanded. Additionally, the issues of service connection for a left shoulder disorder and a pelvic disorder were also reopened and remanded. Service connection of the left shoulder and left hip were granted in an April 2019 rating decision. Thus, these issues are no longer on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). 1. Entitlement to service connection for a low back disorder is remanded. The issue must be remanded for an adequate VA opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board is also obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. In a July 2017 Board decision, this issue was remanded for a VA examination to determine the etiology of the Veteran’s lower back condition. In the February 2019 VA examination, the examiner diagnosed lumbar strain and opined that it was less likely than not related to the motor vehicle accidence (MVA) he experienced in service. The examiner did not provide any medical rationale to support his opinion. The examiner instead cited other back injuries that the Veteran had experienced post-service and stated that these injuries “could” be contributing to his back injury. The Board finds this opinion to be deficient as the use of equivocal language such as “may” or “could” makes a statement by an examiner speculative in nature. Bostain v. West, 11 Vet. App. 124, 127-28 (1998). Furthermore, the Board finds this opinion to be inadequate as the physician did not provide a sufficient supporting rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). There was no medical evidence provided to support the examiner’s opinion that the Veteran’s subsequent back injuries outside of his service caused his lumbar strain rather than the in-service MVA. The examiner also did not provide any rationale to explain why he determined that the MVA had no correlation to the Veteran’s lower back disorder. The opinion is also inadequate as the examiner failed to comply with the July 2017 Board remand directives. The examiner did not address the report prepared by Dr. WM relating the Veteran’s low back problems to the in-service MVA or the Veteran’s lay statements in the April 2016 hearing testimony as directed by the previous Board decision. As such, the issue must be remanded for an adequate VA opinion. 2. Entitlement to service connection for nasal disorder is remanded. The issue must be remanded for an adequate VA opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr, 21 Vet. App. at 311. The Board is also obligated by law to ensure that the RO complies with its directives. Stegall, 11 Vet. App. at 271. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. In the February 2019 VA examination, the examiner diagnosed a deviated nasal septum and opined that this nasal disorder was less likely than not related to his in-service MVA as he was unable to locate the medical records that showed the Veteran sustained a deviated septum during the motor vehicle accident. No other rationale or medical evidence was provided to support this negative nexus opinion. The examiner’s sole reliance on the absence of evidence in the service treatment records in determining negative nexus renders the examination inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that a VA examination was inadequate because the examiner failed to comment on the Veteran’s report of an in-service injury and relied on the absence of evidence in the service treatment records to provide a negative opinion). The opinion is also inadequate as the examiner failed to comply with the July 2017 Board remand directives. The examiner did not address the report prepared by Dr. WM that indicated that the Veteran’s nasal disorder was related to the MVA or the April 2016 hearing testimony that contained the Veteran’s lay statements regarding his nasal disorder in relation to the MVA, as directed by the previous Board decision. As such, the issue must be remanded for an adequate VA opinion. 3. Entitlement to service connection for right eye disorder is remanded. Remand is required for an additional addendum opinion regarding the etiology of the Veteran’s right eye disorder. The examiner was asked in the July 2017 Board remand to diagnose any present right eye conditions and to opine as to whether the Veteran’s eye condition was due to trauma from the MVA that he experienced in service. In the September 2016 hearing, the Veteran’s representative stated that the Veteran had been diagnosed with Horner’s syndrome in his service treatment records (STRs) and that this syndrome was caused by trauma to the eye. The examiner determined in a February 2019 examination that the Veteran did not have Horner’s syndrome but was diagnosed with bilateral cataracts post-surgery, ptosis of the left eye, and optic atrophy of the left eye. The examiner then considered the etiology of the diagnosed right eye cataracts and stated that while it is often age-related, it may also be caused by high sorbitol levels in the eye due to diabetes mellitus. The Veteran is currently service connected for diabetes mellitus. The examiner has opined that the diagnosed right eye cataracts may be secondary to his service-connected diabetes, and in view of the new theory of entitlement raised by the record, a remand for a VA medical opinion is required. See Duenas v. Principi, 18 Vet. App. 512 (2004) (a VA examination is warranted when there is an indication in the record that a current disability is related to military service; the threshold for an indication is low). The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Contact the appropriate VA Medical Centers and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his back disorder, to include lumbar strain. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the back disorder, to include lumbar strain had its onset in, or is otherwise related to, Veteran’s military service, to include the in-service MVA. The examiner must address the following evidence: (i) the Veteran’s STRs, to include the evidence of the jeep accident; (ii) the June 2003 report, prepared by a VA physician, indicating that the Veteran’s myofascial syndrome and lumbar radiculopathy could possibly be related to a 1989 employment accident; (iii) reports prepared by Dr. WM, received by VA in September 2016 relating the Veteran’s low back and nasal problems to the in-service jeep accident; (iv) the September 1985 report from Dr. OB; (v) and the Veteran’s April 2016 Board testimony. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his nasal disorder, to include deviated nasal septum. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the nasal disorder had its onset in, or is otherwise related to, Veteran’s military service, to include the in-service MVA. The examiner must address the following evidence: (i) the Veteran’s STRs, to include the evidence of the jeep accident; (ii) the June 2003 report, prepared by a VA physician, indicating that the Veteran’s myofascial syndrome and lumbar radiculopathy could possibly be related to a 1989 employment accident; (iii) reports prepared by Dr. WM, received by VA in September 2016 relating the Veteran’s low back and nasal problems to the in-service jeep accident; (iv) the September 1985 report from Dr. OB; (v) and the Veteran’s April 2016 Board testimony. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his right eye disorder, to include cataracts. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the right eye disorder had its onset in, or is otherwise related to, Veteran’s military service, to include the Veteran’s in-service MVA The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right eye disorder, to include right eye cataracts, is caused or aggravated by the service-connected diabetes mellitus. The must address the following evidence: (i) the Veteran’s STRs, to include the evidence of the jeep accident and the findings of minimal ptosis of right upper eyelid and incomplete Horner’s Syndrome; (ii) the February 2019 VA examination for eye conditions; (iii) reports prepared by Dr. WM, received by VA in September 2016 relating the Veteran’s low back and nasal problems to the in-service jeep accident; (iv) the September 1985 report from Dr. OB; and (v) the Veteran’s April 2016 Board testimony. 6. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include rating the claims based on the evidence of record. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ashley Ki 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.