Citation Nr: 21070474 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-34 346A DATE: November 24, 2021 REMANDED Entitlement to service connection for a right upper extremity nerve condition is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1987 to March 1995, with additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in October 2017. A transcript is of record. The Board remanded this matter in April 2018, April 2019, November 2020, and April 2021 for additional development. The matter is now returned to the Board for further appellate review. In April 2021, the Board remanded this matter to obtain a medical opinion regarding the nature and etiology of the Veteran's right upper extremity nerve condition. VA obtained an opinion in September 2021; unfortunately, it is inadequate to adjudicate the Veteran's claim. Concerning direct service connection, the September 2021 examiner provided a negative nexus opinion and concluded the Veteran's neck condition, with associated neurological complaints, began after the Veteran's active-duty service. The examiner reported there is no evidence of a neck or nerve condition, including radiculopathy, while the Veteran served on active duty. The examiner noted that references to the Veteran's painful neck motion are not located but do not alter this opinion. In support of the negative opinion, the examiner then reported "A review of the STR's and post-service treatment records fails to find any reference to neck or neuritis proximate to service." See September 2021 Medical Opinion for Direct Service Connection. Although the examiner reported the absence of neck pain notations in the Veteran's service treatment records (STRs) would not alter the negative nexus opinion, the examiner then appears to rely on the absence of neck pain notations when rendering the negative opinion. Moreover, the Veteran's August 1991 and June 1994 STRs do contain notations of neck and back pain. Further, the examiner reported the veteran's painful neck motion was likely a muscular, self-limited condition, and is unlikely to have been due to degenerative cervical spine disease because of the Veteran's age while on active duty. The examiner did not explain the significance of the Veteran's age and how his age weighs in favor of a negative nexus opinion. Lastly, the examiner stated muscular cervicalgia would not cause degenerative spine disease, which in turn would be responsible for radicular symptoms; however, the examiner does not explain why this is the case in the Veteran's particular circumstances and whether muscular cervicalgia predisposed the Veteran to degenerative spine disease and subsequent radicular symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 311; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned). Concerning secondary service connection, the September 2021 examiner concluded that any right upper extremity disability manifested by numbness and tingling, to include C5/6 radiculopathy, is less likely than not due to or aggravated by the Veteran's service-connected right shoulder conditions. The examiner provided a negative opinion, in part, because shoulder conditions "...rarely impact the brachial plexus, causing numbness and tingling in the lower extremity." The Board is unable to determine whether the supporting rationale addresses the Veteran's right upper extremity, as requested by the Board, or inadvertently addresses the Veteran's lower extremities. Moreover, the examiner indicated that an injury to the shoulder that would impact the brachial plexus, causing numbness and tingling, is usually traumatic, involving a major dislocation of the glenohumeral joint or clavicle fracture. The examiner did not explain why the Veteran's service-connected right shoulder conditions did not rise to the level of severity capable of causing or aggravating his right upper extremity nerve condition especially when such injuries are "usually traumatic" but not, therefore, always traumatic. See Barr, 21 Vet. App. at 311. Lastly, in the April 2021 Board remand the Board requested the selected clinician specifically address the March 2020 EMG and notations of back and neck pain in the Veteran's service treatment records. The September 2021 examiner did not address either. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order). The matter is REMANDED for the following action: 1. Obtain an opinion, preferably from a clinician that has not previously examined the Veteran nor provided a medical opinion, addressing the etiology of any right upper extremity disability manifested by numbness and tingling, to include C5/6 radiculopathy. Only schedule the Veteran for a new examination if deemed necessary by the clinician selected to provide the opinion. The selected examiner must provide an opinion addressing whether any right upper extremity disability manifested by numbness and tingling, to include C5/6 radiculopathy, is at least as likely as not (a degree of probability of 50% or higher) the result of disease or injury in service, including his complaints of pain with neck movements and back pain in August 1991 and July 1994. If the selected clinician determines the Veteran's right upper extremity disability manifested by numbness and tingling is not directly related to his active-duty service, the examiner must also opine whether any right upper extremity disability manifested by numbness and tingling is at least as likely as not (1) proximately due to or (2) aggravated beyond its natural progression by the Veteran's service-connected right shoulder disability. Aggravation and causation are distinct theories and must be addressed separately and independently of each other. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In providing the requested opinions, the clinician should specifically address the significance of the findings from the March 2020 EMG and notations of back and neck pain in the Veteran's service treatment records, including the Veteran's August 1991 and June 1994 service treatment records. 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 opinion, to include lay reports of numbness and tingling during periods of elevated pain in the shoulder and elbow provided to the December 2012 VA examiner. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The fact that his report of symptoms is not corroborated by contemporaneous medical treatment records is not, by itself, a sufficient reason to reject the Veteran's report of symptoms capable of lay observation. The examiner is further advised that it is not necessary for pain, numbness and tingling to be attributable to a specific diagnosis or pathology to be considered a service-connected disability so long as the pain, numbness and tingling is productive of functional impairment. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.