Citation Nr: 21075845 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 10-18 199A DATE: December 21, 2021 REMANDED Entitlement to service connection for bilateral carpel tunnel syndrome (CTS), to include as secondary to service-connected cervical spine disability (to include his service-connected bilateral upper extremity radiculopathy) is remanded. Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral knee disabilities and/or altered gait changes caused by his bilateral knee disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1983 to August 1989. These matters are before the Board of Veterans' Appeals (the Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2015, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board. A transcript of the hearing is of record. In July 2021, the Veteran was offered an additional Board hearing, but in August 2021 correspondence he indicated that he did not want another hearing. In July 2015, July 2017, June 2020, and most recently in December 2020, the Veteran's claims were remanded for additional development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with the most recent remand; therefore, the appeal must once again be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for bilateral carpel tunnel syndrome (CTS), to include as secondary to service-connected cervical spine disability and service-connected bilateral upper extremity radiculopathy, is remanded. The Veteran seeks service connection for bilateral CTS which he contends is either the direct result his military service, or was caused or aggravated by his service-connected cervical spine disability and/or service-connected radiculopathy of the bilateral upper extremities. Pursuant to the Board's December 2020 remand, the RO obtained an addendum opinion in March 2021 in light of the August 2020 VA examiner's negative opinions which focused on the lack of "clinical or objective findings" to support a diagnosis of bilateral CTS. In fact, the Veteran has consistently been shown to have a diagnosis of CTS throughout the period on appeal. The March 2021 VA examiner provided negative opinions for service connection for the Veteran's bilateral CTS on both direct and secondary bases. Addressing direct service connection, the examiner did not consider whether the Veteran's CTS was due to the physical duties of his MOS as a postal clerk and/or engineer recovery specialist involving heavy duty lifting, as directed in the December 2020 remand. Regarding secondary service connection, the examiner explained that "[a]s radiculopathies and CTS have a completely different pathophysiology and are anatomically separate, there is no cause or aggravation attributable to the [V]eteran's cervical spine conditions." The examiner noted that the Veteran's 2008 and 2017 electromyography both confirm the diagnosis of mild to moderate bilateral CTS with no evidence of radiculopathy, stating that the Veteran's "cervical spine condition would have no impact as to cause or aggravation directly on carpal tunnel syndrome." The examiner explained that nerve-related symptoms arising from the neck would have crossover in symptomatology if they involved in a radiculopathy of the median nerve root as it transited the neck. However, in providing a negative secondary service connection opinion, the examiner only addressed the Veteran's "cervical spine condition" rather than specifically addressing both the Veteran's cervical spine disability, and his service-connected bilateral upper extremity radiculopathy. As such, the Board finds the March 2021 VA examiner's opinion to be inadequate. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral knee disabilities and/or altered gait changes caused by his bilateral knee disabilities is remanded. The Veteran seeks service connection for a low back disability which he contends is either the direct result of his military service, or was caused or aggravated by his service-connected bilateral knee disabilities and/or altered gait changes caused by his bilateral knee disabilities. In December 2020, the Board remanded the Veteran's claim to obtain an addendum VA opinion that addressed the Veteran's use of a cane due to his back since November 2015, and his reports of having an altered gait due to his knees. The RO obtained an addendum opinion in March 2021. Providing negative direct and secondary service connection opinions, the March 2021 examiner stated that "there is no evidence of a chronic low back condition in service.," and that the Veteran's separation exam is negative for chronic back conditions. In fact, the Veteran reported recurrent back pain on his July 1989 Report of Medical History incident to his separation exam. Moreover, the examiner did not address the April 2008 correspondence from the Veteran's private provider which stated that the Veteran developed chronic back pain during rehabilitation following a 2007 knee arthroscopy and that the Veteran has difficulty on a daily basis with stair climbing, bending, kneeling or squatting. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Finally, requests were sent to the Veteran in June 2020 and December 2020 for information regarding any outstanding private treatment records and requesting authorization to obtain these records on his behalf. The Veteran did not respond to these requests. As the Board is remanding these matters to obtain adequate VA medical opinions, a final attempt to identify and obtain any outstanding private treatment records will be made on remand. The Court in Wood v. Derwinski stated that, "the duty to assist is not a one-way street." If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood, 1 Vet. App. 190 (1991). In light of the above, the Board finds that the record does not contain medical opinions that are sufficient to fairly decide the Veteran's claims. Therefore, the claim must be remanded once again because the RO did not comply with the Board's prior remand directives to obtain adequate medical opinions on behalf of the Veteran. See Stegall, 11 Vet. App. at 268. On remand, addendum medical opinion must be obtained that are adequate for the Board to make an informed decision on the Veteran's claims. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the matters are REMANDED for the following actions: 1. Ask the Veteran to provide authorizations for any outstanding private medical records he would like considered in connection with his appeal. 2. Then, forward the Veteran's claims file to VA physician(s) of appropriate expertise, who have not previously provided opinions in this case, to determine the nature and etiology of his bilateral carpal tunnel syndrome and low back disabilities. VA examinations should not be scheduled unless deemed necessary by the examiner(s) or otherwise required by the evidence. The examiner(s) must review the Veteran's entire claims file, to include a copy of this REMAND, and note the review in the examination report. Thereafter, the respective examiner must provide a fully-articulated medical opinion addressing the following: Bilateral Carpal Tunnel Syndrome (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral carpal tunnel syndrome was incurred in or caused by an in-service injury, illness, or event, to include as due to the in-service complaint of numbness following a May 1988 injury and/or due to physical duties as a postal clerk and/or engineer recovery specialist involving heavy duty lifting? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral carpal tunnel syndrome is caused by his service-connected cervical spine disability? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral carpal tunnel syndrome is aggravated by (increased in severity beyond its natural progression) his service-connected cervical spine disability? (d) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral carpal tunnel syndrome is caused by his service-connected bilateral upper extremity radiculopathy? (e) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral carpal tunnel syndrome is aggravated by (increased in severity beyond its natural progression) his service-connected bilateral upper extremity radiculopathy? Low Back Disability (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability was incurred in or caused by an in-service injury, illness, or event, to include as due to physical duties as a postal clerk and/or engineer recovery specialist involving heavy duty lifting? The examiner must also address the Veteran's report of recurrent back pain on his July 1989 Report of Medical History. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability is caused by his service-connected bilateral knee disabilities, including altered gait changes caused by his bilateral knee disabilities? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability is aggravated by (increased in severity beyond its natural progression) his service-connected bilateral knee disabilities, including altered gait changes caused by his bilateral knee disabilities? In providing the requested opinion, the examiner must specifically consider and address the April 2008 private treatment note that the Veteran's low back pain developed during the rehabilitation phase following the Veteran's knee arthroscopy. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the Veteran's lay contentions of record must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. A lack of documented treatment for a claimed disability in service, while probative, cannot serve as the sole basis for a negative finding. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. The Board reminds the examiner (and the RO) that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran's claims. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.