Citation Nr: 21071375 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-07 729 DATE: November 30, 2021 REMANDED Entitlement to service connection for bilateral neuropathy of the upper extremities is remanded. Entitlement to service connection for degenerative joint disease (DJD) of the cervical spine, to include as secondary to service-connected traumatic arthritis of the right shoulder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1967 to August 1969. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters have been previously remanded by the Board in April 2019, June 2020, and March 2021. The Board notes that it does not currently have jurisdiction of the issues of entitlement to a compensable rating for tension headaches, increased rating for hypertension, and entitlement to TDIU, because the Veteran has opted out of the legacy system for these issues. 1. Entitlement to service connection for bilateral neuropathy of the upper extremities is remanded. While the Board sincerely regrets further delay, a fully-informed decision on the issue of entitlement to bilateral neuropathy of the upper extremities cannot be made because there has not been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A VA examiner must consider the Veteran's lay statements regarding the incurrence of a disorder, and his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23, 39-40. A Veteran is competent to report symptoms that are capable of lay witness observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In March 2021, the Board remanded this claim to obtain a VA examination that specifically addressed whether the Veteran's bilateral neuropathy of the upper extremities was related to service, or caused or aggravated by his cervical spine condition or service-connected right shoulder condition. The Veteran was afforded a VA examination in August 2021. The examiner opined the Veteran's bilateral neuropathy of the upper extremities was less likely than not related to service, and more likely due to his cervical spine condition. However, she did not discuss whether the Veteran's bilateral neuropathy was caused or aggravated by his service-connected right shoulder condition. Additionally, the examiner's only rationale as to why the Veteran's bilateral neuropathy is not related to service was that it was more likely due to his cervical spine condition. She did not consider or address the Veteran's injuries during service, to include his report of "being blown up by a landmine." Thus, a remand is necessary to obtain an addendum opinion on whether the Veteran's bilateral neuropathy of the upper extremities is related to service or caused or aggravated by his service-connected right shoulder condition, and that considers and addresses all lay evidence. 2. Entitlement to service connection for degenerative joint disease (DJD) of the cervical spine, to include as secondary to service-connected traumatic arthritis of the right shoulder is remanded. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A VA examiner must consider the Veteran's lay statements regarding the incurrence of a disorder, and his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23, 39-40. A Veteran is competent to report symptoms that are capable of lay witness observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran was afforded a VA examination in August 2021. The examiner opined the Veteran's cervical DJD is less likely than not due to service. She noted the Veteran's report of medical history from July 1969 that indicates shrapnel entered his upper arm and lacerated his nose. However, she did not consider the Veteran's lay statement that he injured his neck when a landmine blew up. The examiner's only rationale was that there were no records or treatment for a cervical spine condition in service or immediately after separation. The Board notes that the absence of documented treatment or complaints in service or thereafter is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As the examiner relied on the absence of documented treatment or complaints, this opinion is inadequate. Additionally, the examiner opined the Veteran's cervical spine DJD was not caused or aggravated by his service-connected right shoulder condition. She merely stated right shoulder arthritis could not cause cervical spine DJD, and included a list of factors for cervical spine DJD. However, she did not address which factors specifically affect the Veteran, or the actual etiology of his cervical spine DJD. Thus, a remand is necessary to obtain an addendum opinion that specifically considers the Veteran's lay statements instead of relying on the absence of documented treatment or complaints, and addresses the actual etiology of the Veteran's cervical spine DJD. The matters are REMANDED for the following action: 1. Obtain all VA treatment records not currently associated with the claims file. 2. Obtain an addendum opinion for the Veteran's bilateral neuropathy of the upper extremities. The entire file should be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral neuropathy of the upper extremities: (a.) had its clinical onset during active service or is related to any in-service disease, event, or injury, to include his reports of "being blown up by a landmine." (b.) was caused by his service-connected right shoulder condition. (c.) has been aggravated (worsened beyond natural progression) by his service-connected right shoulder condition. In addressing the questions in (b) through (c), please note that there is no temporal requirement that the primary condition (right shoulder condition) be service-connected, or even diagnosed, at the time the secondary condition (bilateral neuropathy of the upper extremities) was incurred, and reliance on this fact will render any opinion inadequate. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. Specifically, the examiner should address the factors that affect the Veteran rather than list them. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Obtain an addendum opinion for the Veteran's cervical spine DJD. The entire file should be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's cervical spine DJD: (a.) had its clinical onset during active service or is related to any in-service disease, event, or injury, to include his reports of "being blown up by a landmine." (b.) was caused by his service-connected right shoulder condition. (c.) has been aggravated (worsened beyond natural progression) by his service-connected right shoulder condition. (d.) If not due to service or service-connected right shoulder condition, then what is the actual etiology of his cervical spine DJD? In addressing the questions in (b) and (c), please note that there is no temporal requirement that the primary condition (service-connected right shoulder disability) be service-connected, or even diagnosed, at the time the secondary condition (cervical spine DJD) was incurred, and reliance on this fact will render any opinion inadequate. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. Specifically, the examiner should address the factors that affect the Veteran rather than list them. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.