Citation Nr: 21069559 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 15-45 936 DATE: November 18, 2021 REMANDED Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for bilateral lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Coast Guard from October 1990 to October 1994, and, thereafter, had various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the United States Naval Reserve beginning in 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) regional office. These matters were previously remanded by the Board in July 2019 and November 2020. In January 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See January 2019 Board Hearing Transcript. As an initial matter, the Board notes that the issue of entitlement to service connection for bilateral hearing loss was remanded in the November 2020 Board decision. While on remand, in a May 2021 rating decision, service connection was granted for bilateral hearing loss, effective April 30, 2021. This represents a full grant of the benefit sought on appeal. As such, there remains no case or controversy, or dispute of fact or law, regarding the issue, and it will not be addressed herein. See 38 U.S.C. § 7105; 38 C.F.R. § 19.22. 1. Entitlement to service connection for a left ankle condition is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of two prior remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the November 2020 remand directives. See Stegall v. West, 1 Vet. App. 368 (1998). Specifically, in November 2020, the Board, noting that the Veteran had asserted that the service treatment records (STRs), which had been associated with the claims file were incomplete, instructed the AOJ to obtain the entirety of the Veteran's service personnel records and STRs, for both service in the United States Coast Guard and service in the United States Naval Reserve. The Board also instructed the AOJ to obtain any pertinent private medical records, including records from Kinematic Consultants, Advanced Open MRI and Diagnostic Imaging, Lakewood Surgery Center, Shore Orthopaedic Group, St. Thomas Neurology, St. Thomas Radiology Associates, Horizon Physical Therapy, Atlantic Medical Imaging, Dr. C. Glastein, and Dr. Lloyd. If any records were unable to be secured, the AOJ was instructed to notify the Veteran of such, as required by 38 C.F.R. § 3.159(e). With respect to the Veteran's service personnel records and STRs, the record indicates that the AOJ requested his Naval Reserve records in November 2020. The record also indicates that the AOJ was informed that all available STRs had been previously provided, but to submit a Code 13 request for personnel records. See December 2020 VA Form 21-3101. However, there is no indication that the AOJ submitted a Code 13 request. Further, there is no indication that the AOJ requested his Coast Guard records. With respect to the Veteran's private records, the record indicates that, in November 2020, the AOJ requested that the Veteran provide the names, addresses, and approximate dates of treatment of medical care providers that provided him with treatment pertinent to his claims, to include the doctors identified above. The AOJ also provided the Veteran and his representative with a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, to allow the AOJ to obtain the Veteran's medical records on his behalf. See November 2020 VA Correspondence. In January 2021, the Veteran responded with a general release and an attachment identifying Kinematic Consultants, Advanced Open MRI and Diagnostic Imaging, Lakewood Surgery Center, Shore Orthopaedic Group, St. Thomas Neurology, St. Thomas Radiology Associates, Horizon Physical Therapy, Atlantic Medical Imaging, Dr. C. Glastein, Dr. Lloyd, Beebe Hospital, Bay Health Hospital, and Atlantic General Hospital. The Veteran also stated that the release was for any and all providers in the area surrounding the Indian River Inlet Coast Guard Station who he may have received treatment from. See January 2021 VA Form 21-4142; January 2021 Correspondence. The record also indicates that, in April 2021, the AOJ informed the Veteran that the system cannot process separate documents with provider information in them and that all information must be supplied on the prescribed form. The AOJ asked that the Veteran submit new VA Forms 4142 and 4142a that included each provider in its own section. See April 2021 VA Correspondence. In May 2021, the Veteran responded with releases for Kinematic Consultants, Advanced Open MRI and Diagnostic Imaging, Lakewood Surgery Center, Shore Orthopaedic Group, St. Thomas Neurology, St. Thomas Radiology Associates, Horizon Physical Therapy, Atlantic Medical Imaging, Dr. C. Glastein, Dr. Lloyd, Beebe Hospital, Bay Health Hospital, Southern Ocean County Hospital, and Atlantic General Hospital. See May 2021 VA Form 21-4142a. The record further indicates that the AOJ was able to obtain records from Atlantic Medical Imaging, Lakewood Surgery Center, Kinematic Consultants, St. Thomas Radiology Associates, Dr. Glastein, Dr. Lloyd, and Kinematic Consultants, but was unable to obtain records from Beebe Hospital, Atlantic General Hospital, Southern Ocean County Hospital, St. Thomas Neurology, Horizon Physical Therapy, and Shore Orthopedic Group. See Atlantic Medical Imaging records, received June 2021 and July 2021; Dr. Lloyd records, received July 2021; Lakewood Surgery Center records, received July 2021; Kinematic Consultants records, received July 2021; St. Thomas Radiology Associates records, received July 2021; Dr. Glastein records, received July 2021. However, while the record indicates that the Veteran was notified that the AOJ was unable to obtain records relating to treatment at Horizon Physical Therapy and Shore Orthopedic Group, there is no indication that the Veteran was informed that records relating to treatment at Beebe Hospital, Atlantic General Hospital, St. Thomas Neurology, Advanced Open MRI and Diagnostic Imaging, Bay Health Hospital, and Southern Ocean County Hospital could not be obtained. The record also indicates that the Veteran was incorrectly notified that records relating to treatment at St. Thomas Radiology Associates could not be obtained. See July 2021 VA Correspondence. As the Board cannot find substantial compliance with the November 2020 remand directives, the Board finds that a remand is necessary to allow the AOJ to attempt to obtain any outstanding pertinent service personnel records and STRs, and to notify the Veteran that certain private records could not be obtained. See Stegall v. West, supra. Even if the Board could find substantial compliance with the November 2020 remand directives, a remand would nonetheless be necessary to afford the Veteran with an adequate examination regarding the nature and etiology of his claimed left ankle condition. In March 2021, the Veteran underwent a VA examination in which the examiner provided a diagnosis of left lateral collateral ligament sprain. Ultimately, the examiner concluded that the Veteran's claimed left ankle condition was less likely than not related to his active duty service. In support of this opinion, the examiner noted that the Veteran's medical records were silent for a left ankle condition. See March 2021 VA Ankle Conditions Disability Benefits Questionnaire (DBQ), received April 2021; March 2021 VA Ankle Medical Opinion DBQ, received April 2021. In other words, in opining that the Veteran's left ankle condition was less likely than not related to his active duty service, the examiner relied solely on the absence of a diagnosis in the Veteran's medical records. However, the Veteran reported that he has experienced pain and stiffness in his left ankle since he rolled such ankle during service. See id. The Board notes that the Veteran is competent to report the onset and progression of symptomatology, and an opinion based on the absence of treatment records without consideration of competent lay reports is inadequate. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, as indicated above, potentially pertinent private medical records were not associated with the claims file at the time of the March 2021 VA examination and etiological opinion. As such, the examination and etiological opinion are inadequate as the examiner was unable to consider the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In September 2021, a VA opinion was obtained in which the physician opined that the Veteran's claimed left ankle condition was less likely than not related to his active duty service. In support of this opinion, the examiner noted that the Veteran's service records were silent for a left ankle injury while in service and that his December 1998 re-enlistment examination was silent for bone, joint, or other deformities and the lower extremity exam was normal. The examiner acknowledged that a lay statement from F. Wetstein reported that the Veteran had a hard cast on his lower leg and was on crutches in the Autumn of 1992, but stated that there was no evidence of injury and one would expect to find x-ray evidence of fracture and treatment records of applying a cast for such an injury. See September 2021 VA Medical Opinion DBQ. However, the physician did not address the Veteran's report that, during his service with the Coast Guard, he received most of his medical treatment from private providers, or that his in-service left ankle injury was treated at a local private hospital. See January 2019 Board Hearing Transcript; March 2021 VA Ankle Conditions DBQ. As discussed above, an opinion based on the absence of treatment records without consideration of competent lay reports is inadequate. See Jandreau v. Nicholson, supra; Dalton v. Nicholson, supra. Moreover, as discussed above, potentially pertinent service personnel records and STRs may not have been associated with the claims file. As such, the March 2021 examination report and September 2021 opinion are inadequate as the respective examiners were unable to consider the Veteran's prior medical history. See Stefl v. Nicholson, supra. For these reasons, the Board finds the March 2021 examination report and September 2021 opinion to be inadequate for adjudication purposes. As such, a remand is necessary to afford the Veteran with an adequate examination regarding the nature and etiology of his claimed left ankle condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for a lower back condition is remanded. 3. Entitlement to service connection for bilateral lower extremity radiculopathy is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of two prior remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the AOJ has not substantially complied with the November 2020 remand directives. See Stegall v. West, supra. Specifically, as discussed above, the Board cannot find substantial compliance with the November 2020 instructions to obtain the entirety of the Veteran's service personnel records and STRs, for both service in the United States Coast Guard and service in the United States Naval Reserve, to obtain any pertinent private medical records, and to notify the Veteran if any records were unable to be secured, as required by 38 C.F.R. § 3.159(e). As the Board cannot find substantial compliance with the November 2020 remand directives, the Board finds that a remand is necessary to allow the AOJ to attempt to obtain any outstanding pertinent service personnel records and STRs, and to notify the Veteran that private records could not be obtained. See Stegall v. West, supra. Even if the Board could find substantial compliance with the November 2020 remand directives, a remand would nonetheless be necessary to afford the Veteran with an adequate examination regarding the nature and etiology of his claimed lower back condition and bilateral lower extremity radiculopathy. In March 2021, the Veteran underwent VA examinations in which the examiner noted diagnoses of lumbar herniated disc and bilateral lower extremity radiculopathy. With respect to the Veteran's lower back condition, the examiner opined that such condition was less likely than not related to his active duty service, noting that he was not diagnosed with the condition until May 2016, which was outside his time on active duty. With respect to the Veteran's bilateral lower extremity radiculopathy, the examiner opined that such condition was less likely than not related to his active duty service, noting that his medical records were silent as to this diagnosis. See March 2021 VA Back Conditions DBQ, received April 2021; March 2021 VA Peripheral Nerves Conditions DBQ, received April 2021; March 2021 VA Back Medical Opinion DBQ, received April 2021; March 2021 VA Nerves Medical Opinion DBQ, received April 2021. In other words, in opining that the Veteran's lower back condition was less likely than not related to his active duty service, the examiner relied solely on the absence of an in-service diagnosis. Similarly, in opining that the Veteran's bilateral lower extremity radiculopathy was less likely than not related to his active duty service, the examiner relied solely on the absence of a diagnosis in the Veteran's medical records. However, the Veteran has reported that he injured his back while holding packages during service, or that his current condition is due to bouncing on boats. See id. The Board notes that the Veteran is competent to report the onset and progression of symptomatology, and an opinion based on the absence of treatment records without consideration of competent lay reports is inadequate. See Jandreau v. Nicholson, supra; Dalton v. Nicholson, supra. Further, as indicated above, potentially pertinent private medical records were not associated with the claims file at the time of the March 2021 VA examination and etiological opinion. As such, the examination and etiological opinion are inadequate as the examiner was unable to consider the Veteran's prior medical history. See Stefl v. Nicholson, supra. In September 2021, a VA opinion was obtained in which the examiner opined that the Veteran's lower back condition and bilateral lower extremity radiculopathy were less likely than not related to his active duty service. In support of this opinion, the examiner noted that the Veteran's STRs are silent for a back injury during service, his re-enlistment physical in 1998 was silent for back complaints and a back exam was normal, and that his current back conditions are most likely related to a 2015 motor vehicle injury. See September 2021 VA Medical Opinion DBQ. However, as discussed above, potentially pertinent service personnel records and STRs may not have been associated with the claims file. As such, the March 2021 examination and September 2021 opinion are inadequate as the respective examiners were unable to consider the Veteran's prior medical history. See Stefl v. Nicholson, supra. For these reasons, the Board finds the March 2021 examination report and September 2021 opinion to be inadequate for adjudication purposes. As such, a remand is necessary to afford the Veteran with an adequate examination regarding the nature and etiology of his lower back condition and bilateral lower extremity radiculopathy. See Barr v. Nicholson, supra. Accordingly, the matters are REMANDED for the following action: 1. Pursuant to 38 C.F.R. § 3.159(e), notify the Veteran that records relating to treatment from Beebe Hospital, Atlantic General Hospital, St. Thomas Neurology, Advanced Open MRI and Diagnostic Imaging, Bay Health Hospital, and Southern Ocean County Hospital were unable to be obtained. 2. With the Veteran's assistance as appropriate, obtain and associate with the Veteran's claims file: (a.) The entirety of the Veteran's service personnel records and service treatment records, for both service in the United States Coast Guard and service in the United States Naval Reserve. (b.) Any outstanding pertinent medical records, whether VA or private, to include records relating to treatment at East Orange VA Medical Center from January 2021 to current. Pursuant to 38 C.F.R. § 3.159(c), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any records are unable to be secured. 3. After completing the development above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran's claimed left ankle condition, lower back condition, and bilateral lower extremity radiculopathy. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, examinations should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) For each diagnosed left ankle condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. (c.) For each diagnosed lower back condition, and any radiculopathy associated therewith, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. (d.) Opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's bilateral lower extremity radiculopathy had its onset during, or is otherwise related to, the Veteran's active duty service. (e.) In formulating the requested opinions, the examiner is asked to consider and specifically address: i. The Veteran's lay statements regarding in-service injuries, including his January 2019 Board hearing testimony; ii. The Veteran's contention that much of his medical treatment during his service with the United States Coast Guard was through private providers; iii. The articles submitted by the Veteran in March 2021; iv. The April 2021 lay statement from J. Vinci; and v. The May 2021 lay statement from F. Wetstein. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded 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 is also reminded that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.