Citation Nr: 21004556 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-20 661 DATE: January 27, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a thoracolumbar spine disability, to include as secondary to a left knee disability is remanded. Entitlement to service connection for sciatica, to include as secondary to a cervical spine disability and/or a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1954 to June 1958. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the Veteran’s issues in July 2017 and December 2018 for further development. However, for the reasons set forth below, the Board finds that substantial compliance with its December 2018 remand directives has not occurred; therefore, the Veteran’s service connection claims must once again be remanded for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a cervical spine disability is remanded. 3. Entitlement to service connection for a thoracolumbar spine disability, to include as secondary to a left knee disability is remanded. 4. Entitlement to service connection for sciatica, to include as secondary to a cervical spine disability and/or a left knee disability is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that 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; 38 C.F.R. § 3.159. In December 2018, the Board remanded the Veteran’s claims of entitlement to service connection for a left knee disability, cervical spine disability, thoracolumbar spine disability, and sciatica. The Board determined that October 2017 VA medical opinions for the Veteran’s claimed disabilities were inadequate and failed to comply with the Board’s July 2017 remand directives. The Veteran was afforded new VA examinations for his left knee disability, cervical spine disability, thoracolumbar spine disability, and sciatica in February 2020. Regarding the left knee, the VA examiner opined that the Veteran’s left knee disability was less likely than not related to service, as records did not indicate that the Veteran suffered a knee injury during service. Regarding the cervical spine, the examiner noted that the Veteran suffered a neck injury during service and a May 1957 service treatment record documented neck pain after a fall in the gym two and a half to three months prior. The Veteran had a course of physical therapy after the fall and diagnoses of left wrist sprain and contusion of the neck were noted. A subsequent May 1957 service treatment record indicated the Veteran’s neck pain was better and x-rays were negative. The examiner noted that the Veteran was found fit for duty and that his cervical condition had resolved by the time he was discharged from service. For these reasons, the examiner opined that the Veteran’s cervical spine disability was less likely than not related to service. Regarding the thoracolumbar spine and sciatica, the examiner noted that treatment records did not indicate that the Veteran was treated for a low back condition or sciatica during his time in service. Therefore, the examiner opined that both the Veteran’s low back condition and sciatica were less likely than not related to service. The examiner further determined that these conditions were less likely than not related to or aggravated by the Veteran’s left knee disability, noting that the Veteran had extensive degenerative changes in his lumbar spine which were directly responsible for his low back condition and sciatica. The examiner also explained that there was no anatomical nexus between the Veteran’s cervical condition and his sciatica, and therefore the Veteran’s sciatica was less likely than not related to or aggravated by his neck condition. Unfortunately, the Board finds that the February 2020 medical opinions are inadequate, as the VA examiner failed to address evidence specifically identified by the Board in its December 2018 remand directives. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). Evidence potentially favorable to the Veteran, such as treatment records and lay statements, have yet to be addressed by a medical professional; therefore, remand for VA addendum opinions that comply with the Board’s December 2018 remand directives is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician, regarding the Veteran’s left knee disability. The claims file and a copy of this remand must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should provide an opinion as to whether the Veteran’s left knee disability is as least as likely as not (50 percent probability or greater) caused by or otherwise related to his active duty service. Please explain why or why not. In forming his or her opinion, the examiner is asked to specifically note the Veteran’s October 1955 knee injury; lay statements from January 2010 and March 2011; and the Veteran’s May 2014 statement regarding the history, symptoms, and treatment of his disabilities. Additionally, Dr. R. F.’s August 1990 letter should not be construed as a comprehensive list of the Veteran’s disabilities existing since 1983. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state 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 the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 2. Obtain an addendum opinion from an appropriate clinician, regarding the Veteran’s cervical spine disability. The claims file and a copy of this remand must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should provide an opinion as to whether the Veteran’s cervical spine disability is as least as likely as not (50 percent probability or greater) caused by or otherwise related to his active duty service. Please explain why or why not. In forming his or her opinion, the examiner is asked to specifically note the Veteran’s 1957 gym injury; lay statements from January 2010 and March 2011; and the Veteran’s May 2014 and December 2017 statements regarding the history, symptoms, and treatment of his disabilities. Additionally, Dr. R. F.’s August 1990 letter should not be construed as a comprehensive list of the Veteran’s disabilities existing since 1983. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state 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 the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Obtain an addendum opinion from an appropriate clinician, regarding the Veteran’s thoracolumbar spine disability and sciatica. The claims file and a copy of this remand must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should provide opinions as to the following: (a) Is the Veteran’s thoracolumbar spine disability as least as likely as not (50 percent probability or greater) caused by or otherwise related to his active duty service. Please explain why or why not. (b) Is the Veteran’s sciatica as least as likely as not (50 percent probability or greater) caused by or otherwise related to his active duty service. Please explain why or why not. (c) Is the Veteran’s thoracolumbar spine disability and/or sciatica as least as likely as not (50 percent or greater) caused or aggravated by his left knee disability? Please explain why or why not. (d) Is the Veteran’s sciatica as least as likely as not (50 percent or greater) caused or aggravated by his cervical spine disability? Please explain why or why not In forming his or her opinions, the examiner is asked to specifically note the Veteran’s 1957 gym injury; lay statements from January 2010 and March 2011; the Veteran’s May 2014 and December 2017 statements regarding the history, symptoms, and treatment of his disabilities; and the July 2017 private treatment record from Dr. B. S. finding that the Veteran suffers from degeneration of the spine caused by previous accident or injury. Additionally, Dr. R. F.’s August 1990 letter should not be construed as a comprehensive list of the Veteran’s disabilities existing since 1983. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state 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 the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, 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.