Citation Nr: 21063586 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-39 589 DATE: October 14, 2021 REMANDED Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for carpal tunnel syndrome of the bilateral upper extremities is remanded. Entitlement to service connection for a headache condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1991 to October 2013. In a May 2020 decision, the Board of Veterans' Appeals (Board), in pertinent part, denied service connection for a neck condition, back condition, right knee condition, left hip condition, carpal tunnel syndrome of the bilateral upper extremities, and memory loss, as well as remanded service connection for a headache condition. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In April 2021, while the case was pending at the Court, the parties signed a Joint Motion for Partial Remand (JMPR), requesting that the Court vacate the Board's decision to the extent that it denied service connection for a neck condition, back condition, right knee condition, left hip condition, and carpal tunnel syndrome of the bilateral upper extremities. The Court subsequently granted the JMPR in an April 2021 order. The matter has now been returned to the Board for further consideration. Upon review of the record, the Board finds that the claims must be remanded. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. 1. Entitlement to service connection for a neck condition is remanded. 2. Entitlement to service connection for a back condition is remanded. 3. Entitlement to service connection for a left hip condition is remanded. 4. Entitlement to service connection for a right knee condition is remanded. The Board finds that new VA examinations and etiological opinions are warranted for the Veteran's claims. The Veteran contends that he has neck, back, left hip, and right knee conditions that are related to service. The Veteran underwent VA examinations for his neck, back, left hip, and right knee conditions in July 2015. However, the Board finds that the examinations are inadequate for adjudication purposes as the examiner did not perform the requisite range of motion testing for active, passive, and non-weight bearing and did not adequately explain why she was unable to opine whether flare-ups or repeated use over time significantly limited the Veteran's functional ability. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). As such testing is imperative to assess functional limitation due to pain, remand for new examinations is warranted. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Moreover, the Veteran asserted that he was never provided with an MRI for his neck and back conditions, which may have shown that he suffered from a soft tissue injury. 5. Entitlement to service connection for carpal tunnel syndrome of the bilateral upper extremities is remanded. The Board finds that a new VA examination and etiological opinion is warranted for Veteran's claim. The Veteran asserts that he has carpal tunnel syndrome of the bilateral upper extremities that is related to his service. Though the Veteran appeared for a VA examination in August 2015 and the examiner found no diagnosis, she noted the Veteran had symptoms attributable to peripheral nerve conditions. Additionally, the examiner did not address the October 2013 private examination that diagnosed the Veteran with cubital tunnel syndrome. Furthermore, as discussed above, a Veteran may be service connected for pain when it reaches the level of functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Accordingly, remand for a new examination and etiological opinion is warranted. 6. Entitlement to service connection for a headache condition is remanded. The Board finds that a new VA examination and etiological opinion is warranted for Veteran's claim. The Veteran asserts that his headache condition is related to his service. In June 2020, an addendum VA opinion from a review of the Veteran's record was associated with the Veteran's claims file. The VA examiner opined the Veteran's headaches were less likely than not related to service because the Veteran suffers from headaches with definite etiologies that do not include a traumatic brain injury. Unfortunately, the Board finds that the June 2020 addendum opinion does not substantially comply with the Board's May 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In particular, the Board previously found the Veteran's reports of head injury from a fight and from hitting a window to be credible despite a lack of notation in his service treatment records (STRs), but the VA examiner failed to address either of those incidents. Moreover, though the June 2020 examiner noted the Veteran's headaches had definite etiologies, she failed to provide any. Accordingly, a remand is necessary to afford the Veteran a new examination to ascertain the nature and etiology of his headache condition. The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims file updated treatment records. 2. Schedule the Veteran for VA examinations with appropriate examiners to determine the nature and etiology of his neck, back, left hip, and right knee conditions. The entire claims file should be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations, to include an MRI, should be conducted. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Identify any currently diagnosable disability associated with the Veteran's neck, back, left hip, and right knee conditions. If the Veteran does not have any diagnosable neck, back, left hip, or right knee disability, but has pain only, determine whether that pain causes functional loss of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). (b.) For each diagnosed neck condition, or for pain that causes functional loss, determine whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's neck condition had its onset in or is related to service? (c.) For each diagnosed back condition, or for pain that causes functional loss, determine whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's back condition had its onset in or is related to service? (d.) For each diagnosed left hip condition, or for pain that causes functional loss, determine whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's left hip condition had its onset in or is related to service? (e.) For each diagnosed right knee condition, or for pain that causes functional loss, determine whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's right knee condition had its onset in or is related to service? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his carpal tunnel syndrome of the bilateral upper extremities. The entire claims file should be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be conducted. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Identify any currently diagnosable disability associated with the Veteran's carpal tunnel syndrome of the bilateral upper extremities, to include cubital tunnel syndrome. If the Veteran does not have a diagnosable carpal tunnel disability, but has pain only, determine whether that pain causes functional loss of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). (b.) For each diagnosed condition, or for pain that causes functional loss, determine whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's carpal tunnel syndrome condition of the bilateral upper extremities had its onset in or is related to service? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his headache condition. The entire claims file should be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be conducted. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Identify any currently diagnosable disability associated with the Veteran's headache condition. If the Veteran does not have a diagnosable headache disability, but has pain only, determine whether that pain causes functional loss of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). (b.) For each diagnosed condition, or for pain that causes functional loss, determine whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's headache condition had its onset in or is related to service? The examiner must specifically discuss the Veteran's CREDIBLE reports of injuring his head in a fight and from hitting a window during service despite a lack of documentation in his STRs. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.