Citation Nr: 21072779 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-07 818 DATE: December 6, 2021 REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a right wrist condition is remanded. Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for a respiratory condition is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty in the United States Army from October 1983 to October 1986, March 1987 to January 1988, and December 1992 to December 1994, and in the United States Air Force from May 1999 to July 1999, with additional periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA). The Veteran appeals a November 2012 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In February 2020, the Board remanded the claims for further development, to include verification of the Veteran's active duty, ACDUTRA, and INACDUTRA service periods, and to afford the Veteran VA examinations to determine the nature and etiology of the disabilities that are the subject of the instant service connection claims. The record reflects that on remand VA obtained service data for the Veteran and the Veteran underwent VA examinations in July 2020. The July 2020 examination reports and the single etiology opinion issued are of record and have been reviewed. The Board finds there has not been substantial compliance with its February 2020 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Accordingly, though the Board regrets the additional delay, the claims are again remanded for the reasons set forth below. Service Periods Verification Accurate determination of the Veteran's service periods is critical to proper adjudication of the instant claims. The Board's February 2020 remand directed VA to "take all necessary steps to verify all periods of active duty, ACDUTRA, and INACDUTRA." Although VA requested and obtained service data from the Defense Personnel Records Information Retrieval System (DPRIS), it consists of dozens of pages of data, including well over 300 entries associated with "Type Duty Codes" that are abbreviations such as "Annual Tour" and "Paid Inac Duty." It is not clear whether these designations or others reflected in the DPRIS data indicate periods of ACDUTRA and INACDUTRA. Thus, the information obtained is not sufficient to comply with the Board's remand directive with the result that the Board is unable to determine if what is represented in the DPRIS data as the Veteran's service dates is accurate. Accordingly, remand is necessary to verify all periods of the Veteran's active duty, ACDUTRA, and INACDUTRA. See Stegall, supra. Low Back Condition Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the July 2020 VA medical opinion obtained pursuant to the Board's prior remand, the VA examiner opined that it is less likely than not that the Veteran's currently diagnosed degenerative disc disease of the thoracolumbar spine is related to in-service back strain and mechanical low back pain reflected in the service treatment records, explaining that the in-service occasions of back pain were essentially acute in nature without chronic residuals, and that the Veteran's enlistment examinations were negative for back pain or injury. Although the examiner acknowledged that the Veteran was in a motor vehicle accident in 1997, they concluded that the Veteran's currently diagnosed back disorder is due to normal aging and wear-and-tear. See VA Medical Opinion dated July 31, 2020 at pg. 3. Nevertheless, the opinion does not consider the Veteran's lay statements of record describing heavy lifting during service and ongoing back pain she did not always seek treatment for during service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding an examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Furthermore, in rendering the opinion, the examiner did not explain why more weight was assigned to the post-service diagnosis of degenerative disc disease rather that the Veteran's lay statements of low back pain dating from service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). As such, these deficiencies must be addressed in an addendum opinion. See Barr, supra; Stegall, supra. The Veteran's representative asserts in the October 2021 appeal brief that mechanical low back pain such as that experienced by the Veteran during service and documented in the service treatment records may develop into a chronic disorder over time, such as degenerative disc disease, with which the Veteran is currently diagnosed. See Written Brief Presentation received October 26, 2021 at pg. 2. Therefore, on remand, the addendum opinion must address this contention. On review, it is not clear when the Veteran was in a motor vehicle accident in the 1990s as the record includes conflicting information regarding the date of the accident. As the date of the accident may be relevant to the adjudication of this claim, on remand, VA must request this information from the Veteran. The Board notes that the Veteran's October 2021 Written Brief Presentation includes a link to the Cleveland Clinic internet site represented to contain information supporting the representative's argument. However, the Board finds that the information found on the linked-to webpage is not the same as that included in the brief and the record does not reflect that the representative has submitted the information directly to the Veteran's electronic claims file. Providing internet links to information or evidence reflected in third party websites is a dubious undertaking as the websites are controlled by neither the Veteran nor VA, and there is no assurance that information presented there will remain static through the course of a VA claim or appeal. Therefore, if the information is to be considered by VA, on remand the Veteran or her representatives should associate the information with the Veteran's electronic claims file. See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009) (the claimant bears the burden of presenting and supporting a claim for benefits); 38 U.S.C. § 5107(a). On remand, an opportunity for such will be afforded the Veteran. Right Wrist Condition The July 2020 VA wrist examination report obtained pursuant to the Board's prior remand noted that the Veteran did not have a current right wrist diagnosis, and for that reason the examiner provided no etiology opinion. See VA Wrist Conditions examination dated July 31, 2020 at pg. 2; VA Medical Opinion dated July 31, 2020 at pg. 3. However, private treatment notes reflect a diagnosis of right wrist tendonitis during the claim period. See Private prescription form dated April 16, 2013. This is suggestive that the July 2020 VA examiner's review of the claims file was cursory at best. See Nieves-Rodriguez, 22 Vet. App. at 302-04 (noting that the central issue in determining the probative value of a medical opinion is whether the examiner was informed of the relevant facts and provides the required explanation for conclusions). Additionally, medical findings based upon an inaccurate factual premise have no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, remand is necessary to obtain an adequate examination and etiology opinion regarding the Veteran's claimed right wrist condition. See Barr, supra; Stegall, supra. Left Ankle Condition The July 2020 VA ankle examination report obtained pursuant to the Board's prior remand noted that the Veteran did not have a current left ankle diagnosis, and for that reason the examiner provided no etiology opinion. See VA Ankle Conditions examination dated July 31, 2020 at pg. 2; VA Medical Opinion dated July 31, 2020 at pg. 6. However, the August 2012 VA examination report reflects that the Veteran reported her left ankle gave out with normal walking on even surfaces, and in her April 2013 Notice of Disagreement she endorsed left ankle weakness and pain. The Veteran is competent to describe these symptoms. Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (a veteran is competent to report the circumstances giving rise to the initial observable symptoms, as well as the nature of the symptoms during and after service). Moreover, the Board emphasized in its February 2020 remand that under a recent Federal Circuit Court holding, pain alone may constitute a disability if it causes functional impairment. Saunders v. Wilkie, 886 F.3d 1356, 1365-68 (Fed. Cir. 2018). The July 2020 VA examiner did not consider the Veteran's endorsements of pain, weakness, and instability, effectively disregarding these statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions). Thus, the July 2020 VA ankle examination is inadequate. Accordingly, remand is necessary to obtain an adequate examination and etiology opinion regarding the Veteran's claimed left ankle condition. See Barr, supra; Stegall, supra. Respiratory Condition The July 2020 VA respiratory examination report obtained pursuant to the Board's prior remand noted that the Veteran did not have a current respiratory diagnosis, and for that reason the examiner provided no etiology opinion. See VA Respiratory Conditions examination dated July 31, 2020 at pg. 2; VA Medical Opinion dated July 31, 2020 at pg. 4. However, private treatment notes reflect a number of respiratory and arguably related diagnoses during the claim period, e.g., small airway disease, dyspnea, asthma, obstructive sleep apnea, deviated septum, chronic rhinitis, and eustachian tube dysfunction. See Private treatment notes dated December 10, 2010, December 13, 2010, February 12, 2018, August 21, 2018, and December 9, 2019. This is suggestive that the July 2020 VA examiner's review of the claims file was incomplete. See Nieves-Rodriguez, supra. Further, medical findings based upon an inaccurate factual premise have no probative value. See Reonal, supra. Accordingly, remand is necessary to obtain an adequate examination and etiology opinion regarding the Veteran's claimed respiratory disorder. See Barr, supra; Stegall, supra. The matters are REMANDED for the following actions: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Ensure that all necessary steps have been taken to verify all periods of active duty, ACDUTRA, and INACDUTRA. Prepare a memorandum that delineates the Veteran's verified periods of ACTIVE DUTY, ACDUTRA, and/or INACDUTRA and associate it with the Veteran's electronic claims file. If necessary, contact DPRIS and/or appropriate military service agencies to obtain information and/or clarification that will allow VA to accurately determine the aforementioned service periods. 3. Contact the Veteran and invite her to provide the precise or approximate date of the 1990s motor vehicle accident. Allow a reasonable time for reply. Associate the Veteran's reply with the electronics claim file. 4. Contact the Veteran's representative and request submission of the information from The Cleveland Clinic website referenced in the October 26, 2001 Written Brief Presentation at pg. 2 to the Veteran's electronic claims file. Allow a reasonable time for reply. 5. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of her low back, right wrist, and left ankle conditions. The evidentiary record, including a copy of this Remand, must be made available to and reviewed by the examiner. *The examiner's review of the body of this Remand as well as the February 11, 2020 Remand is recommended to assist in understanding the nature of the claims and avoiding errors that have rendered previous VA examinations inadequate. After review of the record and examination of the Veteran, the VA examiner should identify all low back, right wrist, and left ankle conditions diagnosed at any time since the commencement of the claims period in December 2010. Then, for each currently diagnosed condition, the VA examiner is asked to respond to the following inquiries: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's low back condition was incurred in, or otherwise related, to her time on active, ACDUTRA, or INACDUTRA service? (The examiner is to specify the period of service he or she is referencing). *Address the Veteran's contention in the October 2021 Written Brief Presentation that mechanical low back pain noted in the service treatment records developed into the currently diagnosed thoracolumbar spine degenerative disc disease the diagnosis reflected in the July 2020 VA Back Conditions examination. Please consider any articles or literature submitted by the Veteran or her representative in support of this contention. *Consider the Veteran's lay statements of record describing heavy lifting during service and ongoing back pain she said she did not always seek treatment for during service. (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's right wrist condition was incurred in, or otherwise related, to her time on active, ACDUTRA, or INACDUTRA service? (The examiner is to specify the period of service he or she is referencing). (c) Is it at least as likely as not (50 percent probability or greater) that the Veteran's left ankle condition was incurred in, or otherwise related, to her time on active, ACDUTRA, or INACDUTRA service? (The examiner is to specify the period of service he or she is referencing). In rendering these opinions, the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 6. Schedule the Veteran for an examination to determine the nature and etiology of her respiratory condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the VA examiner should identify all respiratory conditions present, to include small airway disease, dyspnea, asthma, obstructive sleep apnea, deviated septum, rhinitis, and eustachian tube dysfunction (ETD). Then, for each condition identified, the VA examiner is asked to respond to the following inquiries: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's respiratory condition was incurred in, or otherwise related, to her time on active, ACDUTRA, or INACDUTRA service, to include exposure to asbestos during service? (The examiner is to specify the period of service he or she is referencing). If no, Did the Veteran's respiratory condition clearly and unmistakably (undebatably) preexist her initial period of active service? If yes, Was the Veteran's respiratory condition clearly and unmistakably (undebatably) NOT aggravated by service, to include exposure to asbestos during service? If no, Is it at least as likely as not that the Veteran's respiratory condition was incurred in, or is otherwise related, to her time on active, ACDUTRA, or INACDUTRA service, to include exposure to asbestos during service? (The examiner is to specify the period of service he or she is referencing). *For the purposes of this opinion, the examiner is to assume and accept as true that the Veteran was exposed to asbestos during active service. *The examiner is to comment on the December 2019 article on eustachian tube dysfunction (ETD) by A. Llewellyn, G. Norman, and M. Harden (see VBMS entry with document type "Correspondence," receipt date 12/27/2019). In rendering this opinion, the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 7. Thereafter, ensure that the examiner(s) has/have substantially responded to the questions posed by the Board, and if not, take corrective action. 8. Then, readjudicate the remanded claims. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.