Citation Nr: 21001816 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-48 161 DATE: January 11, 2021 REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a right upper extremity condition, to include as secondary to a back condition, is remanded. Entitlement to service connection for a left upper extremity condition, to include as secondary to a back condition, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1967 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) regional office. In April 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See April 2019 Board Hearing Transcript. In October 2019, the Board continued the denial of the Veteran’s claims of entitlement to service connection for degenerative disc disease of the cervical spine and bilateral upper extremity radiculopathy of the cervical spine. The Veteran appealed the denied claims to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 decision, the Court granted a Joint Motion for Remand (JMR) and remanded the appealed claims for further proceedings. As an initial matter, the Board notes that the Veteran filed claims of entitlement to service connection for C4-7, chronic back pain C6-7, bilateral carpal tunnel syndrome (CTS), bilateral tendonitis, and neuropathy. See April 2013 VA Form 21-526. However, it is well settled that when a veteran makes a claim, they are seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the record shows that the Veteran has sought treatment for chronic lower back pain and has been diagnosed with degenerative changes of the thoracic spine and cervical radiculopathy. Additionally, the Veteran has received a provisional diagnosis of CTS. See Orlando VA Medical Center (VAMC) records, received May 2019 in CAPRI. Further, VA is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or raised by the record. See Schroder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). Here, as noted above, the Veteran has been diagnosed with cervical radiculopathy. See Orlando VAMC records. Accordingly, the Board finds it appropriate to recharacterize the Veteran’s claims as ones of entitlement to service connection for a back condition, entitlement to service connection for a right upper extremity condition, to include as secondary to a back condition, and entitlement to service connection for a left upper extremity condition, to include as secondary to a back condition. 1. Entitlement to service connection for a back condition is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, and in light of the JMR, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, though not discussed in the JMR, the Veteran has submitted a letter from the Social Security Administration (SSA) which shows that he has received disability benefits from that agency since December 2004. See December 2004 SSA Notice of Decision, received April 2013. However, no SSA medical records have been associated with the claims file, nor is there any indication that such records have been requested. Additionally, the Veteran has reported that he has received VA treatment since the 1980s. See April 2019 Board Hearing Transcript. However, no records relating to treatment prior to February 2006 have been associated with the claims file. See Wilkes-Barre VAMC records, received November 2013 in CAPRI. As such, a remand is necessary to allow the AOJ an opportunity to obtain such records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.103(c)(2)(iii), 3.159(c); Turner v. Shulkin, 29 Vet. App. 207 (2018); Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, a remand is necessary to afford the Veteran with an adequate examination to determine the nature and etiology of the Veteran’s claimed back condition. In November 2013, the Veteran underwent a VA examination in which the examiner opined that the Veteran’s cervical spine condition was less likely than not related to his miliary service. In support of this opinion, the examiner noted that the Veteran’s service treatment records (STRs) were silent for any complaint or treatment of any neck condition. See November 2013 Neck Conditions Disability Benefits Questionnaire (DBQ). However, the Veteran is competent to report the onset and progression of symptomatology, and an opinion based on the absence of treatment records without consideration of competent lay reports is inadequate. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, the Veteran’s STRs note treatment for back problems in December 1967 and March 1968, as well as a history of trauma at Parris Island. See STR-Medical. As such, the examiner’s opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 4 Vet. App. 458 (1993). Additionally, as discussed above, the record indicates that pertinent medical records have not been associated with the claims file. As such, the examiner was unable to consider the Veteran’s prior medical history and, therefore, the November 2013 cannot be considered adequate for decision-making purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For these reasons, the Board finds the November 2013 examination to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an addendum opinion regarding the etiology of the Veteran’s left knee condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for a right upper extremity condition, to include as secondary to a back condition, is remanded. 3. Entitlement to service connection for a left upper extremity condition, to include as secondary to a back condition, is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, and in light of the JMR, the Board finds that a remand is necessary to allow the AOJ to conduct additional development. First, as discussed above, a remand is warranted as the record indicates that potentially relevant SSA and VA medical records have not been associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.103(c)(2)(iii), 3.159(c); Turner v. Shulkin, supra; Bell v. Derwinski, supra. Second, a remand is necessary to provide the Veteran with a VA examination to determine the nature and etiology of his claimed bilateral upper extremity condition. A medical examination is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an in-service event, injury, or disease, and (3) an indication that the disability or symptoms may be associated with service or a service-connected condition, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2). Here, the Veteran’s treatment records indicate that he has a current diagnosis of cervical radiculopathy and a tentative diagnosis of CTS. See Orlando VAMC records. Additionally, the Veteran, through his representative, has asserted that his condition is a result of his service as an airframe mechanic, where he used impact wrenches and small hand instruments. See April 2019 Board Hearing Transcript. However, there is no medical opinion regarding the nature and etiology of the Veteran’s claimed bilateral upper extremity condition. Accordingly, the Board finds that the McLendon requirements are met and the Veteran should be provided a VA examination to determine the nature and etiology of his claimed bilateral upper extremity condition. Moreover, with respect to the Veteran’s diagnosed bilateral cervical radiculopathy, the Board finds the issue to be inextricably intertwined with the Veteran’s claim of entitlement to service connection for a back condition, which is remanded herein. As such, a remand is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matters are REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the Veteran’s electronic claims file any outstanding medical records, whether VA or private, including: (a.) Medical records from the SSA; (b.) The entirety of the Veteran’s VA treatment records from Wilkes-Barre VAMC, Orlando VAMC, Butler VAMC, and Fayetteville AR VAMC. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran must be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of the Veteran’s claimed back and bilateral upper extremity conditions. The entire claims file must be provided to, and reviewed by, the examiner and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran’s detailed lay history, including onset and progression of symptomatology. (b.) For each diagnosed back condition, whether cervical or thoracolumbar in nature, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran’s active duty service. THE EXAMINER IS SPECIFICALLY INSTRUCTED TO CONSIDER AND ADDRESS THE VETERAN’S IN-SERVICE TREATMENT FOR BACK PROBLEMS IN DECEMBER 1967 AND MARCH 1968, AS WELL AS THE VETERAN’S HISTORY OF TRAUMA AT PARRIS ISLAND. (c.) For each diagnosed upper extremity condition: i. Opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran’s active duty service. ii. If, and only if, a back condition is found to be related to service above, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such upper extremity condition is caused by the service-connected back condition. iii. If, and only if, a back condition is found to be related to service above, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such upper extremity condition underwent an incremental increase (aggravated), regardless of permanence, by the service-connected back condition. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. THE EXAMINER IS REMINDED THAT THE VETERAN IS COMPETENT TO REPORT SYMPTOMS, TREATMENT, AND INJURIES, AND THAT HIS REPORTS MUST BE TAKEN INTO ACCOUNT IN FORMULATING THE REQUESTED OPINIONS. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.