Citation Nr: 21071085 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-15 808A DATE: November 29, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for neurological disability of the left upper extremity is remanded. Entitlement to service connection for neurological disability of the right upper extremity is remanded. Entitlement to service connection for neurological disability of the left lower extremity is remanded. Entitlement to service connection for neurological disability of the right lower extremity is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for asthma is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1971 to September 1975. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from August 2012 and March 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the matters on appeal to the Agency of Original Jurisdiction (AOJ) for additional development. The case has since returned to the Board for the purpose of appellate disposition. Although the Board regrets the delay, upon review of the claims file, the Board believes that additional development on the remaining claims is warranted. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Moreover, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In addition, the Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. 1. Entitlement to service connection for a back disability is remanded. The Veteran asserts that his back disability is related to service. As noted in the Board's previous remand, treatment records show complaints of low back pain for several decades, and that the Veteran underwent lumbar spine laminectomy in the 1980s. The Board instructed that the Veteran be afforded a VA examination to determine the nature and etiology of the claimed back disability, with consideration of the Veteran's lay statements regarding the onset and continuity of his symptoms. On VA examination in November 2019, the Veteran reported that his low back pain started in 1976 and continued after service, eventually leading to laminectomy. After physical examination, the examiner diagnosed degenerative arthritis of the spine and intervertebral disc syndrome. Upon review of the record, the examiner opined that the claimed back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the examiner merely noted that "service treatment records were silent" for the claimed condition. The examiner did not address the Veteran's statements as to onset and nature of the disabilities, nor provide sufficient medical rationale in support of the opinion. Given the foregoing, the Board finds that remand is warranted to afford the Veteran an additional examination with medical opinion based on full consideration of the Veteran's documented medical history and assertions and supported by clearly-stated rationale. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Barr, 21 Vet. App. at 312. Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for neurological disability of the left upper extremity is remanded. 3. Entitlement to service connection for neurological disability of the right upper extremity is remanded. 4. Entitlement to service connection for neurological disability of the left lower extremity is remanded. 5. Entitlement to service connection for neurological disability of the right lower extremity is remanded. The Veteran asserts that he has right and left upper extremity and right and left lower extremity neurological disabilities, to include numbness and tingling, that originated in service. In the Board's 2018 remand, the Board instructed that the Veteran be afforded a VA examination to determine the nature and etiology of the claimed neurological disabilities. The examiner was asked to specifically consider and address the Veteran's statements as to onset and continuity of his symptoms. On VA examination in November 2019, the Veteran reported onset of numbness and tingling in the feet in the 1970s. He also noted numbness in the hands. After examination, the examiner diagnosed poly-peripheral neuropathy. Upon review of the record, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the examiner merely noted that "service treatment records were silent" for the claimed conditions. The examiner did not address the Veteran's statements as to onset and nature of the disabilities, nor provide sufficient medical rationale in support of the opinion. Given the foregoing, the Board finds that remand is warranted to afford the Veteran an additional examination with medical opinion based on full consideration of the Veteran's documented medical history and assertions and supported by clearly-stated rationale. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Barr, 21 Vet. App. at 312. Stegall, 11 Vet. App. at 271. 6. Entitlement to service connection for sinusitis is remanded. 7. Entitlement to service connection for rhinitis is remanded. 8. Entitlement to service connection for asthma is remanded. As noted in the Board's previous remand, the Veteran reported childhood asthma and allergies at report of medical history at service entrance; however, clinical evaluation did not reveal asthma, hay fever, or sinus condition. Therefore, the Veteran is entitled to the presumption of soundness at service entrance as to the claimed disabilities. The Veteran was afforded a VA examination in 2012, at which time the examiner diagnosed asthma and allergic rhinitis. The examiner opined that the Veteran's asthma and rhinitis were less likely than not worsened by service, noting that there was no evidence that his active service made his allergies or asthma worse, with no complaints or treatment for asthma or allergies in service. The Board noted, however, that the Veteran's service treatment records document various complaints related to sore throat, cough, and congestion. The Board remanded these issues to determine whether any disability clearly and unmistakably preexisted service and aggravated therein, or was otherwise related to service, and requested that the examiner specifically consider and address the Veteran's lay statements as to symptoms and continuity. On VA examination in November 2019, the Veteran reported that he was diagnosed with allergies as a child and that these worsened in service with increased congestion. The Veteran also reported that he had a long-standing history of allergy induced asthma. The examiner opined that the claimed sinus/rhinitis disability was less likely than not incurred in or caused by service, as discharge records showed no record of sinus-related complaints. There were no new allergic symptoms that were not a continuation of preservice symptoms. She noted that the Veteran had multiple allergies which caused allergic rhinitis that predated his military service. As for asthma, the Veteran had asthma as a child which clearly predated service and she noted that he had no exacerbations in service and no new asthma diagnosis in service. The examiner, however, did not complete the portion of the medical opinion report as to aggravation of a condition that existed prior to service. Nor did the examiner address the Veteran's statements as to his symptoms in service or the various reports of symptoms such as cough and congestion in service. Given the foregoing, the Board finds that remand is warranted to afford the Veteran an additional examination with medical opinion based on full consideration of the Veteran's documented medical history and assertions and supported by clearly-stated rationale. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Barr, 21 Vet. App. at 312. Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed back disability, other than the November 2019 VA examiner. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should identify all back disorder(s). Then, the examiner should address whether it is at least at likely as not that the Veteran's back disorder(s) had its onset in service or within one year of discharge, or is otherwise related to service. The examiner is also advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed neurological disabilities of the bilateral upper and lower extremities, other than the November 2019 VA examiner. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should identify all neurological disorder(s) of the right and left upper and lower extremities. Then, the examiner should address whether it is at least at likely as not that the Veteran's upper and lower extremity neurological disorder(s) had its onset in service or within one year of discharge, or is otherwise related to service. The examiner is also advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed sinusitis, allergic rhinitis, and asthma, other than the November 2019 VA examiner. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should state whether the Veteran's sinusitis, allergic rhinitis, and/or asthma clearly and unmistakably preexisted the Veteran's active service. If the examiner determines that any disorder preexisted service, he or she should state whether there was an increase in the disability during service. If the evidence reflects such an increase, the examiner should specifically find whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. If not, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sinusitis, rhinitis, or asthma had its onset in or is otherwise medically related to service. In providing the requested opinion, the examiner is asked to consider and address the in-service reports of cough, congestion, and similar symptomatology. The examiner is also advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.