Citation Nr: 21002047 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 12-22 911 DATE: January 12, 2021 REMANDED Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for left elbow disability, to include ulnar nerve entrapment (cubital tunnel syndrome), is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1980 to June 1992, including Southwest Asia service. The Board remanded the Veteran’s claims in December 2014, October 2016 and June 2018. The issues remanded in June 2018 included a service connection claim for sleep apnea. The Agency of Original Jurisdiction has since granted service connection, so the issue is no longer before the Board. 1. Entitlement to service connection for cervical spine disability is remanded. Upon review of the evidence of record, the Board finds remand is warranted to ensure substantial compliance with the June 2018 remand directives, and to obtain outstanding Social Security Administration records. As part of the June 2018 remand, the Board sought a medical opinion on whether the Veteran has a current cervical spine disability that is related to service. The Board directed that the examiner “address the following: (1) the Veteran’s August 2009 statement that he experienced falls, traumas, and episodes of whiplash that are related to his current cervical spine disorder; (2) the March 1992 Report of Medical History in which the Veteran reported recurrent back pain, and a related statement clarifying that this report was made in reference low back pain as well as right upper back pain; and (3) a June 1992 STR that noted the Veteran’s complaint of right upper back pain and assessed him to have a right upper back muscle spasm.” See June 2018 Board decision, page 14. Although the examiner noted the 1992 service treatment records and addressed the June 1992 muscle spasm, stating "this is an acute issue that would have resolved", the examiner did not address the Veteran’s contentions of experiencing multiple traumas, including multiple cases of whiplash while in service, including while in combat. See June 2020 medical opinion report, page 6; see also August 2009 VA Form 9. This does not constitute substantial compliance with the Board’s remand directives. See Dyment v. West, 13 Vet. App. 141. “The examiner must address the veteran’s lay statements to provide the Board with an adequate medical opinion.” Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). Furthermore, the examiner did not explain why the Veteran’s in-service upper back pain and muscle spasm was acute and would have resolved. This is of particular import as a March 2016 VA examiner noted a whiplash injury is a common cause of herniated discs at the cervical spine. While there is no reasons-or-bases requirement imposed on examiners, they must support their conclusions with an analysis that the Board can consider and weigh against contrary opinions. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, remand is warranted for an additional examination. Additionally, the Veteran’s treatment records raise the possibility he has been receiving disability benefits from Social Security Administration (SSA) since 2006. See April 19, 2012 VA treatment record (“On disability since 2006.”). VA has not sought records from SSA, though they may support the Veteran’s claims. Furthermore, the Board acknowledges that these records are with a Federal facility and that VA has an increased obligation in regard to obtaining records in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(2). Remand is warranted to obtain records from the SSA. 2. Entitlement to service connection for left elbow disability, to include ulnar nerve entrapment (cubital tunnel syndrome), is remanded. In addition to obtaining SSA records, remand is warranted to ensure substantial compliance with the June 2018 remand directives and to obtain medical opinions. The June 2018 examination sought medical opinions related to each current elbow disability, including those previously diagnosed. However, the examiner only addressed in-service aggravation and ulnar nerve entrapment (cubital tunnel syndrome), but did not provide nexus opinion for other specifically identified disabilities. Additionally, the Board seeks an addendum opinion with regard to ulnar nerve entrapment. As part of the September 2020 peripheral nerves examination report, the examiner opined the Veteran’s cubital tunnel syndrome was directly due to or related to his service-connected carpal tunnel syndrome. In support of this opinion the examiner stated, “Previous fractures or dislocations of the elbow can also cause cubital tunnel syndrome.” See peripheral nerves examination report, page 13. However, the Veteran was not granted service connection for carpal tunnel syndrome due to a fracture or dislocation of the elbow. Instead it was based on use of an assistive devise for service-connected disease and injury. See November 2016 examination report. Although the Veteran did fracture his elbow previously, this was prior to service. Accordingly, a clarification opinion and rationale will be sought on remand. The remand directives have been altered for clarity, correctness and to account for previously provided opinions. The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for a VA examination for any current cervical spine disability. The examiner must review the claims file. The examiner must solicit a history of cervical spine (neck) injuries, including specific details about injuries in service, both in and out of combat. For each current cervical spine disability identified in the record or on examination, the examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service, including alleged whiplash? Provide a rationale to support the opinion, and in doing so address the Veteran’s reported history of in-service traumas. The Board makes no judgement on the credibility of these reports at this time. 3. Schedule the Veteran for a VA examination for any current left elbow disability. The examiner must review the claims file. For each current left elbow disability identified in the record or on examination, to include but not limited to olecranon bursitis, osteoarthritis, and ulnar nerve entrapment, the examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service? Is the disability at least as likely as not proximately due to service-connected disease or injury, to include treatment thereof, e.g. use of assistive devices? Is the disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected disability disease or injury, to include treatment thereof, e.g. use of assistive devices? With regard to ulnar nerve entrapment (cubital tunnel syndrome), is it at least as likely as not related to or aggravated by service-connected carpal tunnel syndrome? Provide a rationale to support the opinions, and in doing so address the following: (1) the Veteran’s use of assistive devices, specifically Canadian crutches, allegedly used for service connected disease or injury; and (2) the Veteran’s claimed history of falling as a result of service-connected disease or injury, including a December 2007 fall referenced in VA treatment records dated in August, October, and November of 2008. The Board withholds judgment on the credibility of these contentions at this time. See November and December 2016 VA examination reports. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gregory T. Shannon, 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.