Citation Nr: 21065668 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-01 837 DATE: October 27, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for eczema is remanded. Entitlement to service connection for a low back/tailbone disability is remanded. Entitlement to service connection for headaches is remanded. REASONS FOR REMAND The Veteran served on active duty in United States Navy from July 1999 to July 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a VA Regional Office (RO). By way of background, the Board remanded all claims noted above including the Veteran's claim seeking service connection for an acquired psychiatric disability in a June 2020 decision. Subsequent to the Board's remand, the RO granted service connection for persistent depressive disorder in a June 2021 rating decision. This being a complete grant of the benefit sought, this claim is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). As for the remaining issues, the Board's June 2020 remand directed the RO to afford the Veteran new VA examinations and medical opinions. As will be discussed below, the resulting opinions were not responsive to the Board's directives and, therefore, further remand is required. See Stegall v. West, 11 Vet. App. 268, 271(1998). 1. Entitlement to service connection for a left knee disability is remanded. The Veteran contends that her left knee disability began during service and has experienced symptoms ever since. In June 2020, the Board remanded the Veteran's claim to afford her a VA examination and medical opinion to determine the nature and etiology of any left knee disability. If no diagnosis were to be made, the Board requested that the examiner consider and comment on whether any pain resulted in functional impairment of earning capacity and opine as to whether any such impairment was related to service. In June 2021, the Veteran was afforded a VA knee and lower leg examination and medical opinion. During examination, the Veteran reported left knee pain with "popping". The examiner noted that her initial range of motion was abnormal however for the Veteran it was "normal for body habitus and age with no clinical significance". Upon repeated use over time, the examiner noted that there was evidence of pain and incoordination that limits her functional ability. Ultimately, the examiner opined that the Veteran's "symptoms of her left knee are subjective only and there is not enough objective evidence found to support a diagnosis...therefore, a nexus has not been established". The Board finds this examination and opinion to be inadequate and not responsive to the Board's June 2020 remand directives therefore, a remand is warranted. In particular, the examiner on the one hand noted pain and incoordination upon repeated use over time would negatively impact her functional ability. On the other, the examiner reported no functional impact due to her reported left knee disability. The examiner reported findings on physical examination, to include pain and limited motion from 0 degrees extension to 120 degrees flexion, but on the other hand found the Veteran's symptoms to solely be "subjective" and thus insufficient to support a diagnosis. The examiner did not also squarely answer the question of whether the Veteran's complaints of pain were accompanied by functional impairment of earning capacity and, therefore, could constitute a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (indicating that pain alone can constitute a disability for VA compensation purposes if accompanied by functional impairment of earning capacity). In light of the inadequacies and inconsistencies, the Board finds a new examination is necessary. 2. Entitlement to service connection for eczema is remanded. The Veteran generally contends that her eczema is related to service. In June 2020, the Board remanded the Veteran's claim to afford her a VA examination and medical opinion to determine the nature and etiology of any skin condition. If no diagnosis were to be made, the Board requested that the examiner consider and comment on whether any pain resulted in functional impairment of earning capacity and opine as to whether any such impairment was related to service. In June 2021, the Veteran was afforded a skin VA examination and medical opinion. Upon examination, it was confirmed that the Veteran has a diagnosis of eczema located on her arms, legs, torso, as well hands and fingers. The Veteran reported that her eczema normally occurs in the winter or when it is hot outside and when she is "wet a lot". These conditions result in her having rashes and become very itchy. She further reported to the examiner that her condition began when she was 5 or 6 years old. Ultimately, examiner opined that her eczema is less likely than not incurred in or caused by reports of eczema during service. The examiner noted that the Veteran was treated for a rash and diagnosed in 2000 and 2001 with eczema, "however, the Veteran report[ed] that the onset of her eczema was in childhood. Therefore, a direct service connection has not been established". The Board notes that the Veteran's entrance examination into service does not indicate eczema and, therefore, she is presumed to have entered service in sound condition without a pre-existing skin condition in the absence of "clear and unmistakable" (that is, undebatable) evidence. Here, the June 2021 VA examiner's opinion is insufficient as the rationale provided was conclusory and offered no rationale as to the conclusions reached other than to cite to Veteran's reports of onset prior to service. See Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (2007) (a mere conclusion by an examiner is insufficient to allow the Board to make a fully informed decision as to the probative value of the opinion). See also Horn v. Shinseki, 25 Vet.App. 231, 240-42 (2012) (stating that under caselaw "an unexplained conclusory opinion is entitled to no weight in a service-connection context"). The examiner, in any case, did not address whether any pre-existing eczema was not clearly and unmistakable aggravated in service in light of the in-service references to treatment for the condition. Therefore, the Board finds a remand is warranted to afford the Veteran an adequate VA examination as well as to address the newly raised issue of whether there is clear and unmistakable evidence of a preexisting skin condition and whether or not it has been aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). 3. Entitlement to service connection for a low back/tailbone disability is remanded. 4. Entitlement to service connection for headaches is remanded. The Veteran contends that her low back/tailbone disability and headaches are related to service. Specifically, the record raises the issue of whether these conditions preexisted service as due to a 1997 motor vehicle accident (MVA) and if so, were they aggravated by service. To that affect, the Board remanded the Veteran's claim for a low back/tailbone disability and headaches in June 2020 to obtain VA examinations and medical opinions to determine their nature and etiology. Specifically, the Board asked the examiner whether there is clear and unmistakable evidence that her conditions preexisted service. If so, the examiner was to opine whether any clear and unmistakable evidence existed to indicate the Veteran's conditions were not aggravated by service. In June 2021, the Veteran was afforded a VA examination with subsequent opinion for her headaches. The Veteran's diagnosis of headaches was confirmed but ultimately it was opined that they were less likely than not incurred in or caused by service. The examiner noted the Veteran's reports of headaches in 1999 as well as reports of migraines due to a motor vehicle accident with head injury in 1997. After noting this evidence, the examiner concluded "there is not enough evidence found on exam or in the Veteran's claims file to support a connection for the Veteran's headache; therefore, a nexus has not been established". Also, in June 2021, the Veteran was afforded a VA back examination. The examiner reported that the Veteran has no diagnosis of a low back/tailbone disability "that is at least as likely as not incurred in or caused by the low back/tailbone injury during service". The examiner noted a history of reports of back pain in 1999 including reports of a motor vehicle accident in 1997. Medical records also indicated complaints of back pain in 2002, 2003, 2004 and 2015. The examiner explained, "the Veteran's symptoms of her back are subjective and there is not enough objective evidence found on today's exam to support a diagnosis for a back condition. Therefore, a nexus has not been established. At the outset, the Board notes, a veteran is presumed to be in sound condition when accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not in itself constitute a notation or a pre-existing condition. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). A pre-existing injury or disease will be considered to have been aggravated by service where there is an increase in the disability during service, unless there is a specific finding that the increase is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The presumption of soundness may be rebutted by clear and unmistakable evidence showing that a disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Here, the Board finds that the examiner failed to substantially comply with the Board's remand directives. The June 2021 examiner failed to opine whether the Veteran's headaches or low back/tailbone condition were clearly and unmistakably preexisting service. Also, the examiner was specifically asked to address whether any pre-existing conditions were aggravated beyond their natural progression by active service, and the examiner failed to comply. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is necessary to consider the Veteran's medical history and aggravation beyond natural progression by active service. Furthermore, as to the Veteran's low back condition, the examination included no diagnostic testing even though this is a musculoskeletal condition, and no prior diagnostic testing was reviewed or noted. Even so, the examiner's opinion appears to be based on the absence of evidence without an adequate rationale to discredit the Veteran's reports of onset in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). See also Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address lay evidence, and the Board doesn't find the Veteran not credible or not competent to offer that evidence, the proper remedy is for VA to get a new exam). In addition, the Board notes that there is an outstanding Privacy Act request dated August 26, 2021 that does not appear to have been fulfilled. Because the claim is being remanded, there is no prejudice to the Veteran in referring the Privacy Act request to the AOJ for appropriate action. Thus, on remand, the AOJ must follow procedures for complying with a Privacy Act request. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records for the period from June 2019 to the present. 2. Pursuant to the August 2021 records request, and in accordance with the procedures for complying with a Privacy Act request, provide the requested records. Concurrent with the process of obtaining and providing the requested records, proceed to implement the following remand instructions; do not delay implementing any of the following instructions while waiting to provide the requested records. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any left knee condition. If the examiner determines that a physical examination is necessary to provide the requested opinions, such should be scheduled. A copy of this remand along with all pertinent records must be made available to the examiner for review. Based on the examination and review of the record, the examiner is asked to address the following: (a) Is it at least as likely as not that any currently diagnosed left knee condition is related to an in-service injury, event, or disease? The examiner should consider all Veteran lay statements of left knee pain including reports of onset in service. (b) If no left knee condition is diagnosed, the examiner is asked to opine whether the Veteran's reported left knee pain results in any functional impairment. For any identified functional impairment, the examiner is asked to opine whether it is at least as likely as not related to service. A complete rationale should be provided for all opinions expressed. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any would allow for a more definitive opinion. 4. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran's eczema, low back, and headache disabilities. The examiner should conduct any and all appropriate diagnostic testing and studies he/she deems necessary. A copy of this remand along with all pertinent records must be made available to the examiner for review. Based on the examination and review of the record, the examiner is asked to address the following: (a) Is there clear and unmistakable evidence that the Veteran's eczema, a low back disability and/or headache disability preexisted the Veteran's service? "Clear and Unmistakable" evidence means evidence that cannot be misunderstood or misinterpreted and leads to an undeniable conclusion. Please identify any clear and unmistakable evidence with specificity. (b) If the answer to (a) is yes, were any of the Veteran's disabilities, specifically, eczema, low back, and headaches clearly and unmistakably not aggravated beyond their natural progression by active service? The examiner is directed to consider any in-service treatment for these conditions, the Veteran's lay report of in-service injuries, and her report of continuity of symptoms since service. (c) If the answer to (a) and/or (b) is no for eczema, headaches, and/or lack back conditions the examiner is then to presume the condition(s) did not pre-exist service and to opine whether it is it at least as likely as not that the Veteran's eczema, headaches and/or low back disability were incurred in or are otherwise related to active service? Again, the examiner should consider the in-service treatment records for these conditions, the Veteran's lay reports describing in-service injuries, and her lay reports describing symptoms since service. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.