Citation Nr: 21003608 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-45 363 DATE: January 22, 2021 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a bilateral shoulder disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a bilateral hip disability, to include as secondary to the service-connected bilateral knee disability, is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1979 to June 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Prior History In February 2019, the Board found that VA medical opinions dated March 2013, December 2013, and June 2016 are inadequate because they solely relied on the lack of documented evidence for treatment in the Veteran’s service records, and remanded the claims for further development, i.e., obtaining outstanding private and VA treatment records, including records from the VA clinic in Jackson, Mississippi, and providing new VA examinations and obtaining medical opinions to help determine the etiology of the Veteran’s neck, shoulders, back, and hips disabilities. The Board deferred its decision regarding service connection for sleep apnea pending review of any outstanding treatment records to be obtained on remand. See Board Remand dated February 22, 2019. On remand, VA obtained treatment records from the VA clinic in Jackson, Mississippi, and requested that the Veteran identify outstanding relevant treatment records and provide consent to allow VA to request the records or obtain and submit the records himself. See VA correspondence dated November 22, 2019. Thereafter, what appear to be private treatment records relevant to his hip and sleep apnea disabilities were associated with the Veteran’s claims file. Additionally, in December 2019 the Veteran was afforded VA examinations for neck, shoulders, back, and hips disabilities, and though not requested in the remand, VA afforded the Veteran a sleep apnea examination. The examination reports and etiology opinions have been associated with the claims file and reviewed. Discussion Although the Board regrets the additional delay, remand is again necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38C.F.R. § 3.159(c) (2019). Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, a Board remand confers on the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, in opining that it is less likely than not that the Veteran’s neck, shoulder, back, hip, and sleep apnea disabilities are related to service, the December 2019 VA examiner emphasized the absence of evidence in the Veteran’s service treatment records of the onset of neck, shoulder, back, hip, and sleep disorders or injuries. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that examination was inadequate where the examiner did not comment on the appellant’s report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). Additionally, despite specific instructions in the Board’s February 2019 Remand, the VA examiner acknowledged but failed to address the Veteran’s contentions that he began experiencing neck, shoulder, back, and hip pain in service due to the physical demands of being a mechanic during service. See VA Medical Opinion dated December 6, 2019 at pg. 3. Regarding the Veteran’s claim for service connection for a bilateral hip disability secondary to his service-connected bilateral knee disability, the VA examiner opined that the Veteran’s hip complaints “do not appear to be related to” the knee conditions, and regarding aggravation, concluded that neither knee was “documented to cause an abnormal gait” and the hip complaints “do not appear to be related to or aggravated by the knee conditions. Id. at pg. 5. However, the examiner failed to explain why the Veteran’s hip symptoms do not appear to be related to, or aggravated, by the service-connected knee disabilities, or why the absence of evidence of an abnormal gait is significant, leaving the opinions open to interpretation, thereby lowering their probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). For these reasons, the Board finds inadequate the December 2019 VA medical opinions that address the etiology of the Veteran’s neck, shoulder, back, hip, and sleep apnea disabilities. Accordingly, remand is warranted to obtain addendum opinions addressing the etiology of the Veteran’s neck, shoulder, back, hip, and sleep apnea disabilities, that are compliant with the Board’s remand directives detailed below and adequate for purposes of adjudication of the service connection claims. See Stegall supra; Barr supra. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, obtain addendum opinions from the same VA examiner who conducted the December 2019 VA neck, back, hip and thigh, shoulder and arm, and sleep apnea examinations and associated medical opinions, if available, as to the nature and etiology of the Veteran’s neck, shoulders, back, hips, and sleep apnea disabilities. The claims file and a copy of this Remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The examiner’s review of the body of this Remand is recommended to assist in avoiding errors that have rendered at least eight (8) previous VA opinions inadequate. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinions. If an examination(s) is performed, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a careful review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed neck, shoulders, back, hips, and sleep apnea disabilities since the date of claim in April 2012. (b) For each currently diagnosed neck, right and/or left shoulder, back, right and/or left hip, and sleep apnea disability, provide an opinion as to whether it at least as likely as not (50 percent or greater probability) had its onset during active duty service or is otherwise casually or etiologically related to it. *In doing so, please discuss and weigh (not merely reference) the Veteran’s testimony that the physical demands of his mechanic job in service caused the current disabilities. See e.g., VBMS entry titled “Hearing Transcript” on 08/07/2018. (c) For each currently diagnosed right and/or left hip disability, provide an opinion as to whether it was at least as likely as not (50 percent or greater probability) CAUSED or AGGRAVATED by the service-connected right and/or left knee disabilities. *Any increase/aggravation is sufficient, permanent aggravation is NOT required. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019) (permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease). A complete rationale should be provided for all opinions, on direct, causation, AND aggravation. 3. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell, Associate Attorney 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.