Citation Nr: 21074305 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 13-30 331 DATE: December 14, 2021 REMANDED Service connection for a low back disorder is remanded. Service connection for a neck disorder is remanded. Service connection for a bilateral knee disorder is remanded. Service connection for a RIGHT elbow disorder is remanded. Service connection for a LEFT shoulder disorder is remanded. INTRODUCTION The Veteran served on active duty from August 1999 to August 2004 in the U.S. Air Force. Subsequently, it appears the Veteran served in the Air Force Reserve in some capacity from August 2004 to June 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In September 2017 and August 2018, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review. In January 2018, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the Veteran's claims file. In a September 2019 Board decision, the Board denied all five service connection issues on appeal. However, the Veteran appealed the Board's September 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court partially vacated and remanded the Board's decision to deny service connection for the five issues on appeal, pursuant to an August 2020 Joint Motion for Partial Remand (Joint Motion) by the parties. The reasons for the Court's Order and the specific instructions of the Joint Motion will be discussed in further detail below. Upon return to the Board, in February 2021, the again Board remanded the appeal for further development. The purpose of this remand was to implement the instructions of the parties' August 2020 Joint Motion. This case has since been returned to the Board for appellate review. REASONS FOR REMAND 1. Service connection for a low back disorder is REMANDED. 2. Service connection for a neck disorder is REMANDED. 3. Service connection for a bilateral knee disorder is REMANDED. 4. Service connection for a RIGHT elbow disorder is REMANDED. 5. Service connection for a LEFT shoulder disorder is REMANDED. Pursuant to the August 2020 Court Order and Joint Motion, the parties agreed that in the previous September 2019 Board decision, the Board erred by failing to provide an adequate statement of reasons or bases for its decision to deny service connection for all five issues on appeal. See 38 U.S.C. § 7104(d)(1); Thompson v. Gober, 14 Vet. App. 187, 188 (2000). That is, the Board did not properly weigh the Veteran's lay assertions of chronicity and continuity of symptoms since service for the various disabilities on appeal. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 36768 (2005) (stating that the Board has the duty to determine the credibility and probative weight of the evidence). As a result, the Joint Motion concluded a remand is warranted for the Board to properly consider the evidence of record (to include lay evidence of chronicity), and to provide an adequate statement of reasons and bases in support of its determination, to include whether the provisions of 38 C.F.R. § 3.303(b) (addressing chronicity and continuity of symptoms) are applicable in this case. See 38 U.S.C. § 7104(a), (d)(1). After making such a determination, the Board was instructed to address whether the VA medical examiners adequately considered the foregoing lay evidence in formulating their VA medical opinions on etiology, and if not, ensure new VA medical opinions are obtained to consider this lay evidence. See id.; 38 U.S.C.§ 5103A(a)(1); Miller v. Wilkie, 32 Vet. App. 249 (2020). In addition, for the neck and knee issues on appeal, the parties agreed that the Board erred when it did not provide an adequate statement of reasons or bases because it did not adequately address the Federal Circuit's decision in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone may constitute a disability, even without an identifiable underlying pathology. As a result, upon remand, the Board was instructed to discuss the applicability of Saunders based on the facts of the case and provide an adequate statement of reasons or bases for its determination. See 886 F.3d at 1369. In order to effectively implement the instructions of the parties' August 2020 Joint Motion, the Board in its February 2021 Board remand also added several other reasons for remand. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, substantial compliance with the remand order, but not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). In any event, a failure by the Board to ensure compliance with previous remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Unfortunately, in the present case, the AOJ did not substantially comply with some aspects of the development requested in the Board's most recent February 2021 remand for all five service connection issues on appeal. First, in accordance with the instructions of the Board's February 2021 Board remand, the AOJ secured September 2021 VA addendum opinions from a VA physician addressing all five service connection issues on appeal. However, these additional VA medical opinions addressing the etiology of the Veteran's low back, neck, bilateral knee, RIGHT elbow, and LEFT shoulder conditions, although probative, were not fully adequate. On this point, when VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, the September 2021 VA physician in his addendum opinions failed to directly answer several of the etiology questions as posed, for all five conditions on appeal. That is, for each of the five conditions on appeal, Instructions #4 through #8 of the February 2021 Board remand requested that in providing the requested opinions as to etiology, the VA examiner should consider the Veteran's lay description of his in-service injuries and symptoms as well as his lay description of his post-service symptoms. It should be noted if there is any medical reason to accept or reject the proposition that the Veteran's reported injuries and symptoms in service and thereafter represented the onset of his current disability. Stated another way, the VA examiner was instructed to answer whether the Veteran's lay reports about his in-service and continuing post-service symptoms align with how the currently diagnosed disability is known to develop, or are the Veteran's lay reports generally inconsistent with medical knowledge or are they implausible? In this respect, the Board emphasizes the Court's recent holding that the duty to assist requires that a VA examiner "address the veteran's lay statements to provide the Board with an adequate medical opinion," in part because "medical opinions can inform credibility findings." Miller v Wilkie, 32 Vet. App. 249, 258 (2020). The Court added that a VA examiner needs to explain whether the claimant's lay assertions are generally "consistent or inconsistent" with medical knowledge. Id. at 259-60. In the present case, the September 2021 VA examiner merely listed the Veteran's lay assertions regarding the etiology of his conditions, with little to analysis on the validity of these lay assertions. In addition, Instructions #6 and #7 and #8 of the February 2021 Board remand requested that in providing the opinions as to etiology for the alleged neck and RIGHT elbow and LEFT knee conditions, if a diagnosis cannot be provided for the neck or RIGHT elbow or LEFT knee (e.g., no identifiable underlying pathology), the VA examiner should still specifically state whether any neck or RIGHT elbow or LEFT knee condition manifests in symptoms that causes functional impairment of earning capacity, associated with the Veteran's complaints of neck or RIGHT elbow or LEFT knee pain. If there was functional impairment, then the VA examiner was instructed to consider the neck or RIGHT elbow or LEFT knee condition a "disability" for the purpose of providing the requested nexus opinion(s). Here, the September 2021 VA examiner determined that there was no current diagnosis for the alleged neck and RIGHT elbow and LEFT knee conditions. However, the September 2021 VA examiner failed to discuss whether any of the Veteran's alleged conditions manifested in symptoms that caused functional impairment of earning capacity, regardless of the lack of a formal clinical diagnosis. See generally Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In short, for the knee, elbow, shoulder, low back, and neck disorders on appeal, the AOJ must obtain VA addendum opinions on the etiology of these disorders, after a review of the record. These VA addendum opinions should be secured from the same VA examiner who proffered the September 2021 VA addendum opinions. If the same September 2021 VA examiner is not available, another qualified VA clinician will provide the VA addendum opinions. Another VA examination for each of the disorders on appeal is not necessary unless the VA clinician specifically requests one. Second, per the Board's instructions contained in the earlier February 2021 Board remand, the AOJ attempted to secure any medical and personnel records for the Veteran's service in the Air Force Reserve from August 2004 to June 2007. That is, the Board instructed the AOJ to contact the National Personnel Records Center (NPRC), Records Management Center (RMC), the Commander of the Veteran's Air Force Reserve Unit (if the Veteran provides information to identify his Unit), the Air Force Reserve Personnel Center, the Defense Finance and Accounting Service (DFAS), or any other appropriate Federal or State custodian, to secure any additional medical or personnel records dated from 2004 to 2007 for his Air Force Reserve service. The AOJ partially complied with this request. The AOJ received a May 2021 negative 3101 response from the National Archives Records Center (NARA) and a July 2021 negative response from the RMC. However, the Board sees that an additional February 2021 response from the Defense Personnel Records Information System (DPRIS) contained one new, relevant document - a June 2007 Reserve Order from the Department of the Air Force. This June 2007 Reserve Order confirmed that effective June 2007, the Veteran had been honorably discharged from the Air Force Reserve and relieved from what appears to be a unit assignment - "HQ ARPC (ORS)." Therefore, since the appeal is already being remanded for further development, the AOJ should contact the Veteran by phone or mail and ask him if his service in the Air Force Reserve from August 2004 to June 2007 was an "active" Reserve obligation consisting of periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), or whether it was only an "inactive" Reserve obligation with no assignment to a Reserve unit and no substantive duties for the nearly three year period. If the Veteran advises that his Air Force Reserve service from August 2004 to June 2007 was an "active" Reserve obligation consisting of periods of ACDUTRA and INACDUTRA, the AOJ should contact the Air Force Reserve Personnel Center and the Commander of the Veteran's Air Force Reserve Unit. This is for the purpose of securing any additional medical or personnel records dated from 2004 to 2007 for his Air Force Reserve service, if they exist. Third, per the Board's instructions contained in the earlier February 2021 Board remand, the AOJ attempted to secure post-service private treatment records dated from 2004 to the present for his knee, elbow, shoulder, low back, and neck disorders. These private treatment records included those of Dr. Mario A. Ochoa, who ordered an August 2019 radiology report from Adventist that is present in the claims file, as well as Dr. Stanley Y. Louie, the Veteran's primary care physician. The AOJ partially complied with this request. That is, after the AOJ sent him a February 2021 development letter, the Veteran successfully completed and submitted a March 2021 General Release for Medical Provider Information to the VA (VA Form 21-4142a) for private medical records. This form listed the full names of the above two private providers, their respective business addresses, and the timeframe of their treatment of the Veteran. The Veteran also submitted an accompanying March 2021 Authorization to Disclose Information to the VA (VA Form 21-4142) for private medical records; however, this form was illegible. As such, the VA Private Medical Records Retrieval Center (PMR contractor) sent a March 2021 medical records request reject notice to the AOJ, advising that it would not accept the Veteran's medical authorization to secure private treatment records because one of the forms was "illegible." That notwithstanding, the Board sees that the AOJ failed to follow-up with the Veteran or his representative, for the purpose of securing a legible Authorization to Disclose Information to the VA (VA Form 21-4142) for private medical records. Therefore, the AOJ should do so on remand. The Board finds that this does not constitute an undue burden to the VA. To that end, VA is required to make "reasonable efforts" to obtain relevant private medical records. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). Therefore, this matter is REMANDED for the following action: 1. Contact the Veteran by phone or mail and ask him if his service in the Air Force Reserve from August 2004 to June 2007 was an "active" Reserve obligation consisting of periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), OR whether it was only an "inactive" Reserve obligation with no assignment to a Reserve unit and no substantive duties for the nearly three year period. (The AOJ is advised that a June 2007 Reserve Order confirmed that effective June 2007, the Veteran had been honorably discharged from the Air Force Reserve and relieved from what appears to be a unit assignment - "HQ ARPC (ORS)."). If the Veteran advises that his Air Force Reserve service from August 2004 to June 2007 was an "active" Reserve obligation consisting of periods of ACDUTRA and INACDUTRA, the AOJ should contact the Air Force Reserve Personnel Center and the Commander of the Veteran's Air Force Reserve Unit. This is for the purpose of securing any additional medical and personnel records from the Veteran's time in the Air Force Reserve from August 2004 to June 2007. Such records would include line of duty determinations, point statements, hospital records, examinations, etc. If these Air Force Reserve records dated from 2004 to 2007 are unavailable or do not exist, a negative reply to this effect is required from the appropriate custodian. 2. Ask the Veteran and his representative to resubmit a legible Authorization to Disclose Information to the VA (VA Form 21-4142) for private medical records. (In this regard, the Veteran successfully completed and submitted a March 2021 General Release for Medical Provider Information to the VA (VA Form 21-4142a) for private medical records. This form listed the full names of two private providers, their respective business addresses, and the timeframe of their treatment of the Veteran. The Veteran also submitted an accompanying March 2021 Authorization to Disclose Information to the VA (VA Form 21-4142) for private medical records; however, this particular form was illegible. Thus, the AOJ should follow-up with the Veteran and his representative, for the purpose of securing a legible Authorization to Disclose Information to the VA (VA Form 21-4142) for private medical records.) If the Veteran or his representative resubmits a legible Authorization to Disclose Information to the VA (VA Form 21-4142) for private medical records, the AOJ should make two requests for the authorized records from the private facility(ies), unless it is clear after the first request that a second request would be futile. The Veteran is also asked to provide any of the above private treatment records himself, if he has them in his possession. 3. After completion of steps 1-2, for the alleged neck and RIGHT elbow and LEFT knee disorders, obtain VA addendum opinions from the September 2021 VA examiner. If this VA examiner is no longer available, another qualified VA clinician must provide the VA addendum opinion. Only if deemed necessary by the VA examiner is another VA examination necessary for each disorder on appeal. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinions. Specifically, the VA examiner is instructed that if a diagnosis cannot be provided for the neck or RIGHT elbow or LEFT knee (e.g., no identifiable underlying pathology), the VA examiner should still specifically state whether any neck or RIGHT elbow or LEFT knee condition manifests in symptoms that causes functional impairment of earning capacity, associated with the Veteran's lay complaints of neck or RIGHT elbow or LEFT knee pain. If there is functional impairment, then the VA examiner is instructed to consider the neck or RIGHT elbow or LEFT knee condition a "disability" for the purpose of providing the requested nexus opinion(s). 4. After completion of steps 1-2, for the low back, neck, bilateral knee, RIGHT elbow, and LEFT shoulder disorders, obtain VA addendum opinions from the September 2021 VA examiner. If this VA examiner is no longer available, another qualified VA clinician must provide the VA addendum opinion. Only if deemed necessary by the VA examiner is another VA examination necessary for each disorder on appeal. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinions. Specifically, the VA examiner is asked to provide a more detailed analysis addressing the Veteran's LAY assertions for the alleged in-service onset of each condition and continuing symptoms thereafter. Specifically, the VA examiner should consider the Veteran's lay description of his in-service injuries and symptoms as well as his lay description of his post-service symptoms (the Veteran's specific LAY assertions for each condition were discussed by the Board in its earlier February 2021 Board remand instructions). The VA examiner should note if there is any medical reason to accept or reject the proposition that the Veteran's reported injuries and symptoms in service and thereafter represented the onset of his current low back, neck, bilateral knee, RIGHT elbow, and LEFT shoulder disabilities. Stated another way, the VA examiner should discuss whether the Veteran's lay reports about his in-service and continuing post-service symptoms align with how the currently diagnosed low back, neck, bilateral knee, RIGHT elbow, and LEFT shoulder disabilities are known to develop, or are the Veteran's lay reports generally inconsistent with medical knowledge or are they implausible? DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.