Citation Nr: 21070211 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-41 737 DATE: November 23, 2021 REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a right wrist disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from November 1972 to December 1979 and from November 1980 to October 1993. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded in November 2018 and June 2021 Board decisions to afford the Veteran the opportunity to attain adequate medical opinions regarding the etiology of the Veteran's claimed disabilities. Unfortunately, the Board finds that the evidence of record is insufficient to decide the claims on appeal and adequate medical examinations are necessary before a decision can be reached on the merits. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Accordingly, remand is required to obtain adequate medical opinions that comply with the Board remand directives 1. Entitlement to service connection for a bilateral knee disability. The Veteran asserts that his bilateral knee disability is due to repetitive motion trauma from performing maintenance on aircraft in service. He believes that the wear and tear on the cartilage in both knees is due to standing and working on concrete and maneuvering in and out of aircraft on his knees. See Statement in Support of Claim Received January 2012. The Veteran also specifically asserts that strain was put on his knees due to 20 years of walking on concrete and due to crawling on his hands and knees inside of aircraft; lifting and supporting engine cowling; dragging and lifting B-52 drag chutes; and moving ground equipment and stands into position during all types of weather conditions while in service. See Statement in Support of Claim Received August 2016. See also Appellate Brief Received October 2021. The Veteran's military personnel records indicate that his primary specialty was aircraft maintenance during his 20 years of active service. See Certificate of Release or Discharge DD 214. The Veteran's service treatment records do not include any complaints, treatment, or diagnosis of a bilateral knee disability. Upon separation from his first period of active duty service in May 1979, the Veteran's lower extremities and musculoskeletal system were clinically evaluated as normal. Just prior the Veteran's second period of active service, his lower extremities and musculoskeletal system were clinically evaluated as normal during a September 1980 report of medical examination. However, a separation examination from the Veteran's second period of active duty is not of record. The Veteran's post service treatment records reveal that the Veteran's first documented knee complaints show onset in 2005 with a finding of degenerative arthritis in the knees. A February 2006 treatment record states that the Veteran had an arthroscopic subtotal medial meniscectomy right knee. See Medical Treatment Record Received February 2013. A July 2008 treatment note states that the Veteran had a left knee arthroscopy. Id. A October 2010 treatment note states that the Veteran's approximate onset of bilateral knee pain was in May 2008. An August 2011 treatment note states that the Veteran has localized primary osteoarthritis of bilateral knees. See Medical Treatment Record Received February 2013. An August 2013 treatment record notes that the Veteran had knee surgery in 2007. See Medical Treatment Record Received September 2013. A January 2020 treatment note state that the Veteran has joint pain in the knees since surgery. See CAPRI treatment records received May 2020. The Veteran was afforded an examination for his bilateral knee condition in November 2019 and a etiological medical opinion (Disability Benefits Questionnaire) was provided in June 2020. The June 2020 medical examiner noted that the first documented treatment for his knees was in 2005 when degenerative arthritis was diagnosed. The June 2020 VA examiner made no mention of the Veteran's lay statements where he stated that he damaged his knees crawling in and out of aircrafts hourly every day, lifting and supporting engine cowling, dragging and lifting drag chutes, and similar activities for 20 years and failed to consider or acknowledge these statements. Therefore, in its June 2021 remand, the Board determined the June 2020 medical opinion was inadequate for decision-making purposes; thus, the Board assigns no probative value to this medical opinion. The Veteran's bilateral knee disability was evaluated again in an August 2021 Disability Benefits Questionnaire (DBQ) examination. The examiner opined that the Veteran's bilateral knee disability was less likely than not incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner stated that the Veteran reports a history of recurrent bilateral knee pain that is achy and mild. Additionally, it was stated that the Veteran denied any direct injury or trauma, but reported a history of crawling inside aircraft while in service. The examiner also stated that the Veteran's knee condition is indicative of normal wear and tear and correlates with expected degenerative changes for the age of the Veteran. Moreover, the examiner stated that the records support that the right knee condition developed well after service and the separation examination was silent for any findings related to the knee. Further, it was stated that all knee conditions were not reported until 2013 based on the medical record. The examiner also acknowledged that bilateral knee degenerative disease was noted on x rays in September 2010 and by a treatment note from Dr. DD in July 2011. The examiner stated that the bilateral knee degenerative disease ultimately resulted in a knee replacement. The Board finds that based on the current record remand is required for a new VA examination and opinion. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As all of the current examinations of record have been deemed inadequate, remand is required. The Board finds that with respect to the most recent August 2021 DBQ examination specifically, the examiner failed to take into account that the Veteran's separation examination of record is from his first period of period. Moreover, it is unclear if a separation examination from the Veteran's second period of service is available. The Board has a duty to assist the Veteran with locating records that relate to his claims particularly when those records could be determinative of the outcome of whether or not service connection is warranted. As the missing separation examination report could potentially reveal information regarding the onset of the Veteran's bilateral knee disability in service, these claims must be remanded. Moreover, the Board notes that in its rationale, the August 2021 DBQ examiner stated that there were no reported knee conditions until 2013, however, the record indicates that the Veteran's first noted date of knee issues was 2005. The information used by the examiner to justify a negative etiological opinion was not based on the accurate facts of record which furthermore supports remanding these claims. A medical opinion based on an inaccurate factual premise must be dismissed as non-probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). An adequate medical opinion must be based upon a consideration of the Veteran's prior medical history and must describe the Veteran's condition in sufficient detail so as to allow the Board to make a fully informed evaluation. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Based on the foregoing, the Veteran's claim of service connection for a bilateral knee disability must be remanded. 2. Entitlement to service connection for a right shoulder disability. The Veteran asserts that his right shoulder disability is related to lifting and holding heavy parts that go on the aircraft in service. See Statement in Support of Claim Received January 2012; Appellate Brief Received October 2021. The Board notes that the Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of a right shoulder disability. Upon separation from his first period of active duty service in May 1979, the Veteran's upper extremities and musculoskeletal system were clinically evaluated as normal. Just prior the Veteran's second period of active service, his upper extremities and musculoskeletal system were clinically evaluated as normal during a September 1980 report of medical examination. However, a separation examination from the Veteran's second period of active duty is not of record. The Board notes that the Veteran's post service treatment records state that the Veteran had shoulder surgery in 2003. See Medical Treatment Records Received September 2013. A June 2020 VA examiner provided a negative etiological opinion regarding the Veteran's right shoulder disability, noting that the Veteran's treatment records do not indicate that he was seen for any shoulder problems during service and was not diagnosed with a torn rotator cuff until 1999. The examiner also stated that this indicates acute or subacute traumatic etiology and not something related to service. However, the examiner failed to discuss the Veteran's lay statements that his shoulder pain onset in the 1980's, did not seek care for it but suffered from it since service. Therefore, in its June 2021 remand, the Board determined the June 2020 medical opinion was inadequate for decision-making purposes; thus, the Board assigns no probative value to this medical opinion. The Veteran was afforded another examination to evaluate his right shoulder disability in an August 2021 DBQ examination. The examiner opined that the Veteran's right shoulder disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner stated that the Veteran reported a history of recurrent shoulder pain, that was achy and mild, but denied direct injury or trauma and further reported a history of crawling inside aircraft in service and presented no current treatment or recent imaging to support a right shoulder injury. The examiner explained that mild right shoulder pain was diagnosed as a right shoulder strain condition, indicative of normal wear and tear due to aging. Additionally, the examiner noted that the right shoulder disability developed well after separation from service and is less likely related to service including crawling inside of aircraft during service or any labor associated with working on aircraft. Unfortunately, the Board finds that the most recent August 2021 right shoulder DBQ examination is inadequate. As the examiner failed to take into consideration any separation report from the Veteran's second period of active duty service when formulating the etiological opinion, the Board cannot rely on this opinion. The Board finds that as stated above, with respect to the most recent August 2021 DBQ shoulder examination specifically, the examiner failed to take into account that the Veteran's separation examination of record is from his first period of period. Moreover, it is unclear if a separation examination from the Veteran's second period of service is available. The Board has a duty to assist the Veteran with locating records that relate to his claims particularly when those records could be determinative of the outcome of whether or not service connection is warranted. As the missing separation examination report could potentially reveal information regarding the onset of the Veteran's right shoulder disability in service, this claim must be remanded. VA has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of pertinent treatment records including those related to a separation examination. 38 U.S.C, § 5103A; 38 C.F.R. § 3.159. As such, the Board finds that the duty to assist must be fully satisfied before rendering a decision on this matter. 3. Entitlement to service connection for a left wrist disability. 4. Entitlement to service connection for a right wrist disability. The Veteran asserts that he is entitled to service connection for his claimed bilateral wrist disability as he experienced tingling in both wrists and hands due to crawling around inside of aircraft during active duty service. See VA 21-4138 Statement in Support of Claim Received January 2012; Appellate Brief Received October 2021. The Veteran also asserted that he experienced no feeling at all in his wrist. See Notice of Disagreement received October 2013. The Board notes that the Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of a left or right wrist disability. Upon separation from his first period of active duty service in May 1979, the Veteran's upper extremities, neurological system, and musculoskeletal system were clinically evaluated as normal. Just prior the Veteran's second period of active service, his upper extremities, neurological system, and musculoskeletal system were clinically evaluated as normal during a September 1980 report of medical examination. However, a separation examination from the Veteran's second period of active duty is not of record. The Board notes that the Veteran was initially afforded a DBQ examination to assess his claimed left and right wrist disability in November 2019. Although the examiner noted the Veteran's complaints of reported feelings of numbness in his wrists and hands, the examiner was not able to evaluate the claimed disabilities or provide an opinion as the particular facility had restrictions against obtaining EMG/NCS to address this issue. The Veteran was subsequently afforded an DBQ examination of his left wrist in August 2021. The examiner opined that the Veteran did not have a left wrist diagnosis or condition and presented no symptoms upon examination. The Veteran was also afforded a DBQ examination in August 2021 of his right wrist. The examiner opined that the Veteran's right wrist disability is less likely than not incurred in or caused by an in service injury, event, or illness. As rationale, the examiner noted that the Veteran reported a history of recurrent right wrist pain, achy and mild pain and denied any direct injury or trauma. Additionally, the examiner noted that the Veteran reported a history of crawling inside aircraft in service and noted that the Veteran had not received current treatment for the disability and indicated that recent imaging did not support an in-service connection. The examiner reasoned that the diagnosed right wrist strain disability was indicative of normal wear and tear with aging process. Moreover, the examiner noted that the condition developed well after service and was not reported until 2013. The Board also notes that a July 2021 imaging report of the right wrist is also of record. The findings of the report revealed that no fractures were seen. The report also identified slight joint space narrowing and osteophyte formation in the first carpometacarpal joint. The impression demonstrated mild osteoarthritis in the first carpometacarpal joint. See C&P Received August 2021. There is no imaging report of the left wrist of record. The November 2019 DBQ examination for the right and left wrists indicated that the facility had restrictions against obtaining EMG/NCS to address his wrists disabilities. From the August 2021examination report, it is not clear if any diagnostic testing was done to determine whether the Veteran had a left wrist disability that is related to active duty service. The Board notes that as stated above, there is a July 2021 imaging report of the right wrist which appears to be consistent with diagnostic testing, but there are no imaging reports of record pertaining to the claimed left wrist disability. As such, remand is required. The Board also notes that although the Veteran's post service treatment records do not reference a specific left or right wrist disability, the Veteran has reported feelings of pain, tingling, numbness, and "no feeling at all" in his wrists during the period on appeal and these symptoms may constitute a disability for VA purposes. Although the August 2021 examiner opined that the Veteran did not have a left wrist diagnosis or condition at the time of the examination, it does not appear that the examiner fully considered whether any of the Veteran's self-reported symptoms demonstrated that he had a left wrist disability at any time during the period on appeal. The Board notes that in Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018), the Court held that pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1110. As such, remand is required for clarification on whether the Veteran did in fact have a left wrist disability for VA purposes during the appeal period. Unfortunately, the Veteran's claims for service connection of a left wrist disability and a right wrist disability must be remanded to clarify if a separation examination is available for the Veteran's second period of service ending in October 1993 and to afford the Veteran the opportunity to undergo an adequate examination with proper diagnostic testing. The VA had a duty to assist in obtaining the separation record as required per 38 C.F.R. § 3.159(e). The Board also finds that for the reasons already detailed above, the RO has not complied with the instructions from the previous remand. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Undertake efforts to ascertain and obtain any updated relevant treatment records, including any separation examination report from the Veteran's second period of service ending in October 1993 and associate them with the claims file. If the record is not in VA possession, the AOJ is directed to contact the Veteran to clarify whether he has a copy of a separation examination from his second period of active service which ended in October 1993, and if so, obtain the necessary authorization and provide guidance to the Veteran on submitting the record to the Board. Document all efforts in the record. 2. After completing Step 1, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and cause of the Veteran's bilateral knee disabilities, right shoulder disability, and bilateral wrist disabilities. Any indicated studies and tests deemed necessary by the examiner should be accomplished. Prior to reaching an opinion, the examiner should review this remand decision and the case file in its entirety, including all of the medical evidence of record, including the separation examination from the end of the Veteran's first period of service in November 1979 and, if available, any separation examination from the Veteran's second period of service that ended in October 1993. The claims file and a copy of this Remand must be made available to the examiner for review. The examiner should respond to the following: a. Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral knee disability is related to or had its onset during service, to include labor associated with working on aircraft. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. b. Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right shoulder disability is related to or had its onset during service. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. c. Identify any left and/or right wrist disability by (1) diagnosis or (2) functional impairment that existed at any point during the appeal period. Even if the Veteran does not display pain or symptoms in his wrists at the time of the examination, the examiner must consider any disability he has related to his wrist at any time during the period on appeal. The examiner is reminded that pain can constitute disability if it causes impairment in earning capacity. The examiner must address the Veteran's reported symptoms of pain, tingling, numbness, and "no feeling at all" in his wrists during the period on appeal. The examiner must include appropriate diagnostic testing and imaging reports particularly, with respect to the Veteran's left wrist. d. Then, opine whether it is at least as likely as not that an left and/or right wrist disability is related to service, to include labor associated with working on aircraft. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide a medical opinion, then he/she must explain in detail why that is the case and provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.