Citation Nr: 21067873 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-00 708 DATE: November 5, 2021 REMANDED Entitlement to service connection for a bilateral eye condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a lumbosacral spine condition is remanded. Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for a left ankle condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1958 to September 1961. 1. Entitlement to service connection for a bilateral eye condition is remanded. 2. Entitlement to service connection for a left knee condition is remanded. 3. Entitlement to service connection for a right knee condition is remanded. 4. Entitlement to service connection for a lumbosacral spine condition is remanded. 5. Entitlement to service connection for a cervical spine condition is remanded. 6. Entitlement to service connection for a right ankle condition is remanded. 7. Entitlement to service connection for a left ankle condition is remanded. The Board notes that a remand by the Board confers on the Veteran the right to compliance with the terms of that remand. Stegall v. West, 11 Vet. App. 268 (1998). Here, the Veteran's claims for service connection for his eyes, back, neck, knees, and ankles were remanded by the Board in May 2021 to acquire adequate VA examinations and opinions with regards to the nature and etiology of these claimed disabilities. To this end, the Board found that the previous examinations of record from September 2020 failed to adequately provide rationales to support the examiner's ultimate conclusions, to include consideration of lay assertions by the Veteran and his family. In the Remand, the RO was explicitly directed to acquire etiological opinions that not only showed explicit consideration of the Veteran's lay evidence, but also provided full rationales of any conclusions reached regarding the question of nexus; such was not achieved by the VA examination reports acquired. In June 2021, the Veteran was afforded VA examinations for his claimed disability of the eye, back, neck, knees, and ankles. After a noted examination of the Veteran and the claims file, the VA examiner ultimately found that none of these disabilities were due to his active service or arose therein. In this regard, the examiner provided, ostensibly, the same rationale for all the disabilities, in that there was no evidence of any incurrence of such disabilities during service, and no evidence in the claims file of continuity of symptoms. The examiner acknowledged, broadly, a review of all evidence of record, to include lay evidence. The Board, however, finds that the rationale provided by the June 2021 VA examiner to be inadequate, and fails to abide by the directives set out in the Board's last remand. Specifically, the Board notes that the acquired opinions fail to adequately address the Veteran's lay assertions regarding when and how his conditions arose, to include continuity of symptoms since his active service. While the examiner noted, broadly, that he had considered the lay evidence of record, both the opinion and rationale were silent on any explicit analysis or review of such evidence, to include claims of continuity of symptoms by the Veteran. The Board again highlights that the reason for the last remand was that the September 2020 VA opinions were inadequate in assessing the lay evidence of record. As directed by the May 2021 Remand, the RO requested addendum opinions and specifically noted that the examiner must explicitly address at least the credibility and competency of the lay evidence in providing any rationale with regards to the claimed conditions, especially in lieu of service treatment records that were lost due to fire. In response to this request for a clarifying opinion, the same examiner simply copy-and-pasted his previous opinion to the July 2021 request for an addendum. As such, the Board finds that such examination opinion, to include the July 2021 addendum to be inadequate, and remand is again required. To this end, the Board further points out that or record is an August 2020 nexus opinion which provides a positive nexus opinion for the Veteran's claims musculoskeletal disabilities, to include for his back, neck, knees, and ankles. Such opinion, while positive, was also considered inadequate as it fails to provide any rationale for such findings. However, as such opinion is contrary to the June 2021 VA examination and opinions, the August 2020 nexus opinion must also be addressed and considered to resolve the conflicting medical conclusions of record. As such, remand is required for the VA to fulfill its duty to the Veteran. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of any and all bilateral eye condition(s) attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should identify any and all bilateral eye condition(s) attributable to the Veteran throughout the appellate period, including those that either have resolved or are currently asymptomatic. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition manifested during, or is the result of, his active duty service. In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including, but not limited to: (i) The Veteran's VA medical records; (ii) The Veteran's private medical records; and (iii)The Veteran's and his family's competent lay statements, including the June 2017 testimony as to the Veteran's first-hand experiences during service and the nature, onset, and continuity of his symptomatology. To this end, it is not sufficient or adequate for the examiner to simply not review of the lay evidence. If the clinician determines that the Veteran's bilateral eye condition(s) is/are less likely than not due to his active service, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 2. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of any and all bilateral knee condition(s) attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should identify any and all bilateral knee condition(s) attributable to the Veteran throughout the appellate period, including those that either have resolved or are currently asymptomatic. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition manifested during, or is the result of, his active-duty service. In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including, but not limited to: (i)The Veteran's VA medical records; (ii) The Veteran's private medical records; and (iii) The Veteran's and his family's competent lay statements, including the June 2017 testimony as to the Veteran's first-hand experiences during service and the nature, onset, and continuity of his symptomatology. To this end, it is not sufficient or adequate for the examiner to simply not review of the lay evidence. If the clinician determines that the Veteran's bilateral knee condition(s) is/are less likely than not due to his active service, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached, which must explicitly reconcile any opinion with those already of record, to especially include the August 2020 opinion. 3. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of any and all bilateral ankle condition(s) attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should identify any and all bilateral ankle condition(s) attributable to the Veteran throughout the appellate period, including those that either have resolved or are currently asymptomatic. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition manifested during, or is the result of, his active-duty service. In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including, but not limited to: (i)The Veteran's VA medical records; (ii) The Veteran's private medical records; and (iii) The Veteran's and his family's competent lay statements, including the June 2017 testimony as to the Veteran's first-hand experiences during service and the nature, onset, and continuity of his symptomatology. To this end, it is not sufficient or adequate for the examiner to simply not review of the lay evidence. If the clinician determines that the Veteran's bilateral ankle condition(s) is/are less likely than not due to his active service, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached, which must explicitly reconcile any opinion with those already of record to especially include the August 2020 opinion. 4. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of any and all back condition(s) attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should identify any and all back condition(s) attributable to the Veteran throughout the appellate period, including those that either have resolved or are currently asymptomatic. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition manifested during, or is the result of, his active-duty service. In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including, but not limited to: (i)The Veteran's VA medical records; (ii) The Veteran's private medical records; and (iii) The Veteran's and his family's competent lay statements, including the June 2017 testimony as to the Veteran's first-hand experiences during service and the nature, onset, and continuity of his symptomatology. To this end, it is not sufficient or adequate for the examiner to simply not review of the lay evidence. If the clinician determines that the Veteran's back condition(s) is/are less likely than not due to his active service, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached, which must explicitly reconcile any opinion with those already of record to especially include the August 2020 opinion. 5. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of any and all neck condition(s) attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should identify any and all neck condition(s) attributable to the Veteran throughout the appellate period, including those that either have resolved or are currently asymptomatic. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition manifested during, or is the result of, his active-duty service. In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including, but not limited to: (i)The Veteran's VA medical records; (ii) The Veteran's private medical records; and (iii) The Veteran's and his family's competent lay statements, including the June 2017 testimony as to the Veteran's first-hand experiences during service and the nature, onset, and continuity of his symptomatology. To this end, it is not sufficient or adequate for the examiner to simply not review of the lay evidence. If the clinician determines that the Veteran's neck condition(s) is/are less likely than not due to his active service, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached, which must explicitly reconcile any opinion with those already of record to especially include the August 2020 opinion. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.