Citation Nr: 21001887 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-00 570 DATE: January 12, 2021 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left foot disability remanded. Entitlement to service connection for a right foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 2002 to March 2003. The Veteran also had an earlier four month period of active duty as well as service in the Army National Guard. In May 2019 the Veteran testified at a video hearing before the undersigned and a transcript of that hearing has been associated with the claims file. In a September 2019 decision the undersigned, among other things, denied service connection for neck, bilateral elbow, bilateral wrist, bilateral knee, bilateral ankle, and bilateral foot disabilities. The Veteran appealed the September 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent August 2020 order, which incorporated the parties of Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the September 2019 Board decision to the extent that it denied service connection for neck, bilateral elbow, bilateral wrist, bilateral knee, bilateral ankle, and bilateral foot disabilities. Entitlement to service connection for neck, bilateral elbow, bilateral wrist, bilateral knee, bilateral ankle, and bilateral foot disabilities are remanded. As to all the issues still on appeal, the JMPR vacated and remanded the September 2019 Board decision because, in substance, that Veteran was not provided with VA examinations to ascertain the origins of his neck, bilateral elbow, bilateral wrist, bilateral knee, bilateral ankle, and bilateral foot disabilities and because the Board did not adequately explain why he did not meet the McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006) criteria to be afforded the VA examinations. Upon further a review of the record on appeal the Board finds that it, as noted by the JMPR, includes the Veteran’s competent and claims regarding having observable symptoms, such as pain, of the claimed disorders in and since service (see Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009)) and these claim, when taken together with the other evidence of record, triggers VA’s duty to provide the Veteran with VA examinations. Id. Therefore, the Board finds that a Remand to provide the Veteran with VA examinations to ascertain the diagnoses and origins of his neck, bilateral elbow, bilateral wrist, bilateral knee, bilateral ankle, and bilateral foot disabilities is required. See 38 U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled.); 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). While the appeal is in remand status any outstanding VA and private treatment records should also be obtained and associated with the claims file. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Associate with the record 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’s representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board and help expedite the case. 3. In order to comply with the JMPR, provide the Veteran with a VA examination to obtain medical opinions as to the diagnoses and origins of his neck, bilateral elbow, bilateral wrist, bilateral knee, bilateral ankle, and bilateral foot disabilities. The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: (a) Provide a diagnosis for all neck, bilateral elbow, bilateral wrist, bilateral knee, bilateral ankle, and bilateral foot disabilities. (b) For each diagnosed neck, bilateral elbow, bilateral wrist, bilateral knee, bilateral ankle, and bilateral foot disability, provide an opinion as to whether it is at least as likely as not that it had its onset directly during the Veteran’s service or is otherwise related to any event or injury during his service. (c) If arthritis is diagnosed in any of the claimed joints, provide an opinion as to whether it manifested in the first post-service year. In providing answers to the above questions the examiner should consider and discuss the service treatment records. In order to comply with the JMPR, the examiner in providing the above opinions must consider and discuss, among other things, the Veteran’s competent lay claims regarding observable symptomatology in and/or since service to include the claims regarding pain: 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 answering the question please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must 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.