Citation Nr: 21073128 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 18-15 207 DATE: December 7, 2021 REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to a compensable rating for a service-connected mallet left little finger disability, to include pain in the hand, forearm, and elbow, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 2004 to August 2013, to include service in Iraq and Afghanistan. This matter comes before the Board of Veterans' Appeals (Board) from an April 2014 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In October 2020, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. In May 2021, the Board remanded this matter for further development. In August 2021, VA examinations and etiology opinions were obtained pursuant to the May 2021 Board remand. Unfortunately, as will be discussed below, the August 2021 examinations and opinions are inadequate, and remand is necessary again to obtain adequate examinations and opinions. 1. Entitlement to service connection for a right hip disability is remanded. 2. Entitlement to service connection for a left hip disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a left ankle disability is remanded. 5. Entitlement to a compensable rating for a service-connected mallet left little finger disability, to include pain in the hand, forearm, and elbow, is remanded. The August 2021 examinations and opinions contain numerous deficiencies that render them inadequate. First, the Board instructed that the examiner "must concede that the Veteran has current bilateral hip, left ankle, and right knee disabilities for VA purposes based on demonstrated functional impairment that impacts earning capacity." See May 2021 Board hearing transcript (Tr.) at 4-5; Saunders v. Wilkie, 886 F.3d 1356 (2018) (holding that pain resulting in functional impairment constitutes a disability as contemplated by 38 U.S.C. § 1110, even in the absence of a diagnosed condition). The examiner failed to make the required concession. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). On each respective examination report, the examiner indicated that the Veteran did not have a bilateral hip, left ankle, or right knee disability. Furthermore, the examiner based her negative nexus opinion on the premise that the Veteran does not have the claimed disabilities. Failure to concede the presence of a disability for VA purposes as instructed by the Board constitutes substantial non-compliance that requires correction on remand. Second, although the examiner claimed that she conducted the requested evidentiary review, specifically the Veteran's reports of his conditions at the Board hearing, her examination reports reflect findings that contradict the Veteran's credible testimony. The Board instructed that the examiner must accept the Veteran's descriptions of his claimed disabilities to be true. Tr. 6. The examiner did not do this. If she had, there would have been a need to reconcile the Veteran's reports with her findings to the contrary. For example, despite the extensive hearing testimony about pain and functional impact, each respective examination report indicates that neither the hips, left ankle, nor right knee are productive of pain or functional impairment. This also constitutes substantial non-compliance that requires correction. Third, the hand/finger, nerves, and elbow/forearm examination reports indicate that the Veteran denied pain and functional impairment. This contradicts the Veteran's credible hearing testimony and fails to comply with the Board's remand instruction that the examiner must consider and discuss this evidence. See May 2021 Board remand at 3-4. The examiner also failed to concede, as instructed by the Board, that impact on earning capacity constitutes a disability for VA purposes. This again constitutes substantial non-compliance that requires correction. Lastly, the examiner indicated that the Veteran denied any problems with the right knee and that he withdraws the appeal for the knee. The statement that the Veteran denies any problems with the knee conflicts with his hearing testimony, VA treatment records, and past examinations. The examiner's remark that the Veteran withdraws his right knee claim does not constitute a valid withdrawal and the issue remains active in appellate status until the Veteran or his representative submit a written withdrawal that meets the criteria of 38 C.F.R. § 20.204(b). If the Veteran wishes to withdraw his appeal concerning service connection for a right knee disability, he may work with his representative to submit a written withdrawal statement. Accordingly, although the Board regrets delaying this case further, remand is unfortunately necessary to obtain an adequate examination and opinions to ensure the VA meets its statutory obligation to assist the Veteran. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Schedule the Veteran for an examination with an appropriate clinician, other than the August 2021, February 2018, October 2016, and April 2014 hand and finger examiners, to determine the current severity of his service-connected mallet left little finger disability. The entire claims should be made available to and must be reviewed by the examiner, to include the entirety of the October 2020 Board hearing transcript. All findings must be reported in detail. The examiner must consider and discuss the Veteran's credible hearing testimony of his finger disability, specifically his description of functional impairment and pain therein. Tr. 2-10. 4. Schedule the Veteran for a peripheral nerves examination with an appropriate clinician, other than the August 2021 examiner, addressing the Veteran's pain in the left hand, arm, and elbow that he relates to his service-connected mallet left little finger disability. Tr. 2-3. The entire claims file should be made available to and must be reviewed by the examiner, to include the entirety of the October 2020 Board hearing transcript. All findings must be reported in detail. After reviewing the claims file and examining the Veteran, the examiner is asked to identify any neurological disabilities affecting left hand, arm, or elbow disabilities. If the examiner indicates that there is no diagnosed disability, the examiner must provide an alternative explanation for the Veteran's symptoms. The examiner is advised that any functional impairment that affects earning capacity, such as that described by the Veteran on pages 4-5 of the hearing transcript, constitutes a disability for VA purposes. Saunders v. Wilkie, 886 F.3d 1356 (2018). The examiner must accept as true the Veteran's reports of impairment that affects earning capacity. This means that even if you indicate no diagnosed disability, the Veteran still has a disability for VA purposes, you still must render an etiology opinion, and basing a negative opinion on the lack of a diagnosed disability will render the opinion inadequate. For each such disability, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that such disability: (a.) is proximately due to the Veteran's service-connected mallet left little finger disability; or (b.) has been aggravated (worsened) by the Veteran's service-connected mallet left little finger disability. In addressing the above questions in 4(a)-(b), the examiner must address each question separately and must consider and discussand accept as truethe following: (c.) The entirety of the October 2020 Board hearing transcript as it relates to the Veteran's left finger disability, and specifically the Veteran's testimony regarding pain radiating from his finger to his hand, arm, and elbow (Tr. 2), his testimony about the "whole left side of [his] upper body" manifesting pain (Tr. 2), and the functional impairment caused by his left finger disability, including dropping items without notice and loss of strength (Tr. 2-5). (d.) The February 2018 C&P hand and finger examination that indicated an EMG finding of left median motor nerve showing decreased conduction velocity (palm-wrist, 45 m/s). The examiner is specifically asked to discuss whether this EMG finding indicates a disability that (1) is proximately due to the Veteran's service-connected mallet left little finger disability; or (2) has been aggravated (worsened) by the Veteran's service-connected mallet left little finger disability. 5. Obtain an addendum opinion from an examiner other than the August 2021 examiner addressing the etiology of the Veteran's bilateral hips, left ankle, and right knee conditions. The entire claims file should be made available to and must be reviewed by the examiner, to include the entirety of the October 2020 Board hearing transcript. The examiner must concede that the Veteran has current bilateral hip, left ankle, and right knee disabilities for VA purposes based on demonstrated functional impairment that impacts earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). Failure to make this concession or basing a negative opinion on the lack of a diagnosis will render the opinion inadequate. This means that even if you indicate no diagnosed disability, the Veteran still has a disability for VA purposes, you still must render an etiology opinion, and basing a negative opinion on the lack of a diagnosed disability will render the opinion inadequate. After conceding that the Veteran has current bilateral hip, left ankle, and right knee disabilities, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that such disabilities: (a.) had their onset in service or are otherwise related to service, to include as the result of a conceded cumulative impact injury described below; (b.) are proximately due to the Veteran's service-connected left knee disability or the limp due to his service-connected left knee disability; or (c.) have been aggravated (worsened) by the Veteran's service-connected left knee disability or the limp due to his service-connected left knee disability. In addressing the above questions in 5(a)-(c), the examiner must consider and discuss the following: (d.) The cumulative impact of the Veteran's military occupational specialty in service as a mechanic working on Apache helicopters. See Tr. 10. The examiner must specifically consider and discuss the Veteran's testimony at pages 10-12 of the hearing transcript where the Veteran describes the impact of his duties including contorting and squeezing his body into tight spaces and carrying heavy ammunition, including 110-pound missiles, and getting repeatedly hit in the right knee by 110-pound ammo cans. (e.) Medical evidence, which the examiner must accept as true, that he walked with a limp in service due to his service-connected left knee disability and left knee surgery, specifically September 2005 and November 2006 service treatment records noting limp on the left leg and the left knee giving out when bearing weight. (f.) The January 2021 VA treatment record indicating that the Veteran's bilateral hip pain is likely due to his knees. (g.) The Veteran's credible testimony, which the examiner must accept as true, that he limped in service for years before the left knee surgery (Tr. 12), he has experienced consistent pain in the hips and ankles since the left knee surgery (Tr. 12), he has had pain in all joints since leaving service (Tr. 14), his description of the contralateral side, opposite joint manifesting pain (Tr. 14), his reports of constant left ankle pain and being unable to walk (Tr. 17), his gait problems starting in service around 2007 (Tr. 18), and that his bilateral hips, left ankle, and right knee pain prevent him from playing sports (Tr. 18). Failure to accept these reports as true will render the opinion inadequate. The examiner is advised that basing a negative nexus opinion on any lack of documentation, including lack of documentation of an abnormal gait or of "chronic off-loading from the left knee" to another joint (see, e.g., October 2016 hips and knee examinations) will render the opinion inadequate. A robust rationale must be given for all opinions and conclusions. If unable to opine without resorting to speculation, please provide a basis for reaching this conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.