Citation Nr: 21002346 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 13-29 416 DATE: January 13, 2021 REMANDED Entitlement to service connection for a right hand disorder is remanded. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected chronic acromioclavicular joint separation with left shoulder degenerative joint disease (left shoulder disability) is remanded. Entitlement to service connection for a bilateral eye disorder, to include as secondary to service-connected temporal mandibular joint syndrome (TMJ) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1985 to July 1992. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an August 2016 hearing. These issues were previously before the Board in April 2018, when they were remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. While on remand, the claims for service connection for TMJ, left ear pain, and tinnitus were granted in a February 2020 rating decision, and characterized as service connection for TMJ with bruxism and left ear pain, and service connection for tinnitus associated with TMJ with bruxism and left ear pain. This represents a full grant of the benefits sought, and these issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Board finds there was substantial compliance with the April 2018 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, for the reasons stated below, remand is again required. 1. Entitlement to service connection for a right hand disorder is remanded. 2. Entitlement to service connection for a cervical spine disorder is remanded. 3. Entitlement to service connection for a bilateral eye disorder, to include as secondary to service-connected TMJ, is remanded. First, remand is required for a new VA examination for the right hand disorder. 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). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). The Veteran underwent a VA examination in March 2012 where the examiner provided a negative nexus opinion. The examiner explained that the dupuytren’s contracture was diagnosed in 2004, many years after discharge. The examiner also stated that etiology is unknown, and therefore was not caused or aggravated by service or a service-connected condition. The examiner provided no other supporting rationale. First, it is unclear what service-connected condition the examiner was referring to here, as at the time, the Veteran was not service-connected for any disability. Second, at his August 2016 Board hearing, the Veteran asserted that he was always banging his hands on the tank hatch while in service, and that at his exit examination, he was told that his finger looked like it was broken, and that he might need medical attention down the road. A careful review of the record finds August 1991 service treatment records (STRs) indicating a possible fracture of the right small finger, with soft tissue swelling. The examiner did not address these records in their opinion. Accordingly, remand is required for a new VA examination for the right hand disorder. Second, remand is required for a VA examination for the cervical spine disorder. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, March 2011 VA treatment records indicate a diagnosis of cervical spondylosis and degenerative disc disease. March 2019 VA treatment records indicate a diagnosis of cervical spine multilevel degenerative disease. At his August 2016 Board hearing, the Veteran asserted that while in service, he fell 17 feet from a tank turret, and landed on his head and shoulder. He indicated that he was treated for his shoulder, and that he believes his cervical neck disorder is related to that fall. The Veteran is service-connected for a left shoulder disability. As there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination for a cervical spine disorder is required. Third, remand is required to obtain missing STRs and missing treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). As noted above, at his August 2016 Board hearing, the Veteran asserted that at separation, he was told that his finger looked broken, and that it needed medical attention. A careful review of the record finds that the Veteran’s exit examination is not part of the Veteran’s claims file. Accordingly, remand is required to obtain these missing STRs. Numerous entries in the Veteran’s VA treatment records indicate that private treatment records (PTRs) were uploaded into Vista imaging, including on dates in December 2015, June, July, and August 2016, May and June 2017, and May 2018. The Board does not have access to Vista imaging, therefore these records will need to be added to the Veteran’s claims file separately. Accordingly, remand is required to obtain missing treatment records. Fourth, remand is required to obtain missing PTRs. VA’s duty to assist claimants to obtain evidence needed to substantiate a claim includes making reasonable efforts to obtain relevant private medical records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In December 2020, the RO received a fax from Friederich’s Chiropractic indicating that the Veteran would be undergoing treatment at their facility later that month. The RO does not appear to have attempted to retrieve these records. The Board notes that the April 2018 Board remand instructed the RO to obtain and associate with the claims file missing PTRs identified in the record. The RO sent letters to the Veteran in May 2019 and March 2020 requesting that he identify and authorize for release any outstanding PTRs. The Veteran did not reply to either letter. The Board notes that the duty to assist a claimant is not a one-way street, and in the instant case, the Veteran must cooperate by responding to the RO’s request for authorization to request records to the full extent in the development of her claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (noting that VA’s duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where their assistance to VA is necessary). Nonetheless, as remand is already required, the Veteran will be provided another opportunity to identify and authorize these records for release. Finally, the Board notes that the examiner in the December 2019 VA examination for the TMJ is a dentist, and that they indicated that they could not provide an opinion on the bilateral eye disorder’s association with the now service-connected TMJ without resorting to mere speculation. The RO made several attempts to schedule an eye examination, but experienced difficulties involving the novel coronavirus pandemic. Finally, in September 2020, a note was added to the claims file indicating that the appointment was canceled at the Veteran’s request, although no further reasoning was listed. As noted above, VA’s duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where their assistance to VA is necessary. See Wood, 1 Vet. App. at 406. However, while on remand, the Veteran should be provided with another opportunity for a VA eye examination. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, including non-VA treatment records found in Vista imaging. 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. 2. Obtain the Veteran’s service treatment records, specifically the Veteran’s exit examination. 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. 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. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his right hand disorder. 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. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the right hand disorder had onset in, or is otherwise related to, active military service. (b) The examiner must address: 1) August 1991 STRs indicating treatment of possible fracture of the right small finger; 2) the March 2012 VA examination; and 3) the August 2016 Board hearting testimony indicating that the Veteran hurt his hand on the tank hatch during service, and that at separation he was told his finger looked broken and he needed to seek treatment. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his cervical spine disorder. 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. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the cervical spine disorder had onset in, or is otherwise related to, active military service. (b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the cervical spine disorder is caused by the service-connected left shoulder disability. (c) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the cervical spine disorder is aggravated by the service-connected left shoulder disability. (d) The examiner must address the Veteran’s August 2016 Board hearing testimony indicating that while in service, he fell 17 feet from a tank turret and landed on his head and shoulder. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his bilateral eye disorder. 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. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral eye disorder had onset in, or is otherwise related to, active military service. (b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the bilateral eye disorder is caused by the service-connected TMJ. (c) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the bilateral eye disorder is aggravated by the service-connected TMJ. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.