Citation Nr: 21076106 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-53 794 DATE: December 22, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right wrist injury is remanded. Entitlement to service connection for residuals of a throat injury is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from August 1981 to August 1989. See DD Form 214. The Veteran was afforded a Board hearing before the undersigned Veterans Law Judge in July 2019, and a transcript has been associated with the record. See July 2019 Hearing Transcript. This appeal has been remanded in December 2019 to obtain records, and in May 2021 to obtain adequate VA examinations. See December 2019 BVA Decision; see May 2021 BVA Decision. Unfortunately, for the reasons discussed below, another remand is required. Unless there is clear and unmistakable evidence to the contrary, the VA must presume that the veteran was in sound condition except as to those defects, infirmities, or disorders noted at the time of his or her entrance into service. 38 U.S.C. §§ 1111, 1132 (West 2015); 38 C.F.R. § 3.304 (2021). The presumption of sound condition provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not detected. In this case, the Board finds that the March 1981 enlistment examination indicated that all systems were normal on clinical evaluation, and no condition was "noted" at service entrance, such that the presumption of soundness applies. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see Military Personnel Record. The pertinent VA regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). Further, to the extent that the Veteran's right wrist was broken at age 11, as indicated on his medical history report, the examiner specified that he had full range of motion and function. See Military Personnel Record. Although a June 2021 VA examiner indicated that the right wrist condition clearly and unmistakably preexisted service, the examiner merely reiterated the documentation as discussed above, and also noted that the wrist had healed with full range of motion, suggesting normal function. See June 2021 VA Medical Opinion Disability Benefits Questionnaire. Neither the Veteran's own reports, or the June 2021 VA examiner's opinion are sufficient to amount to the "clear and unmistakable" evidence which the Board requires, and as such the presumption of soundness is not rebutted. See Military Personnel Record; see June 2021 VA Medical Opinion Disability Benefits Questionnaire. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999) (citing definition of "clear and unmistakable error" in Russell v Principi, 3 Vet. App. 310, 313-14 (1992)). Accordingly, the Board finds that the Veteran should be presumed sound as to his low back, left ankle, right wrist and throat disabilities, and on remand, for the reasons discussed below, the VA examiners should provide opinions as to the nature and etiology of the disabilities. All Disabilities The Veteran claims entitlement to service connection for low back, left ankle, throat and right wrist disabilities that he contends are related to his in-service motor vehicle accident, specifically from straining against the seatbelt. The Veteran detailed how the cross bars on the steering wheel hit him in the throat pushing his windpipe to the left such that he manually pushed it back to center. See July 2019 Hearing Transcript; see July 2021 VA Examination Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx Disability Benefits Questionnaire. He also described jerking his right hand, twisting his wrist in the accident resulting in soreness and slight swelling for approximately a week. Id. Indeed, the service treatment records show that he was treated in December 1986 for hitting his head on the steering wheel of the Hummer, such that his report of straining against his seat belt is found to be both competent and credible. See December 1986 Medical Treatment Record-Government Facility. Current treatment records show the Veteran has a low back disability, to include lumbar spondylosis, degenerative joint disease and arthritis shown on radiographs, and reported low back pain, to include with bending, prompting a request for a back brace. See Houston VA Medical Center records received February 2020 in CAPRI; see Houston VA Medical Center records received February 2020 in CAPRI. His left ankle disability includes a September 2018 diagnosis of mild degenerative joint disease, with an October 2018 finding of corticated bony density adjacent to the tip of the fibula likely due to an old avulsion fracture, and has been described as tender and causing instability on ladders. Id. His right wrist has been treated with a splint, and is diagnosed as chronic right wrist sprain. See Houston VA Medical Center records received February 2020 in CAPRI; see July 2020 VA Examination Wrist Conditions Disability Benefits Questionnaire. The Veteran has described chronic cough and speech changes when he turns his head, which he attributes to his traumatic injury to the throat, and a VA examiner has noted he has pharyngeal trauma. See July 2021 Medical Opinion Disability Benefits Questionnaire. An examiner should consider whether his current claimed disabilities are consistent with the type of injuries and symptoms that he has described as occurring from the accident. The recently obtain VA opinions remain inadequate. Specifically, the June 2021 opinions regarding the low back, left ankle and right wrist failed to address the central question applying the correct standard, of whether it is at least as likely as not that the current respective disability was incurred in or related to service, to include the in-service event of the motor vehicle accident and resultant injuries, both as documented and as reported by the Veteran. See June 2021 Medical Opinion Disability Benefits Questionnaire. Additionally, the VA examiner's July 2021 opinion regarding the laryngeal trauma indicated there was no specific, direct correlation between the Veteran's in-service incidents and his present-day laryngeal condition without providing any reasoning to substantiate the opinion. See July 2021 Medical Opinion Disability Benefits Questionnaire. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, another opinion needs to be obtained for the examiner to accurately consider and address the Veteran's medical history and render an opinion supported by adequate rationale regarding whether the Veteran's low back, left ankle, right wrist and throat are incurred in or related to service. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. Accordingly, while on remand, any outstanding relevant VA treatment records since January 2020 should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from January 2020 to the Present. 2. Then, schedule the Veteran for VA examination(s) for his low back, left ankle, right wrist and throat. The examiner must review the entire claims folder. The examiner is asked to provide a response to the following, to include the Veteran's lay statements: I. LOW BACK A. Is the Veteran's LOW BACK DISABILITY at least as likely as not related to service, including the Humvee motor vehicle accident in-service? Provide a rationale to support the opinion(s). The examiner is specifically requested to discuss the relationship between the Veteran's reported back pain from jerking against the seat belt during the accident and his current low back disability. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? B. Is it at least as likely as not that the Veteran's low back disability, specifically his degenerative joint disease (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? II. LEFT ANKLE A. Is the Veteran's LEFT ANKLE DISABILITY at least as likely as not related to service, including the Humvee motor vehicle accident in-service? Provide a rationale to support the opinion(s). The examiner is specifically requested to discuss the relationship between the Veteran's reported ***. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? B. Is there arthritis of the left ankle? If so, is it at least as likely as not that the Veteran's left ankle arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? III. RIGHT WRIST A. Is the Veteran's RIGHT WRIST DISABILITY at least as likely as not related to service, including the Humvee motor vehicle accident in-service? Provide a rationale to support the opinion(s). The examiner is specifically requested to discuss the relationship between the Veteran's reported right wrist pain from catching it on the steering wheel during the accident. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? B. If the Veteran has arthritis of the right wrist, is it at least likely as not that it (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? IV. THROAT DISABILITY Is the Veteran's THROAT DISABILITY at least as likely as not related to service, including the Humvee motor vehicle accident in-service? Provide a rationale to support the opinion(s). The examiner is specifically requested to discuss the relationship between the Veteran's reported back pain from hitting his neck against the steering wheel during the accident, and feeling his windpipe be pushed aside, such that he manually moved it back into place. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? I. IV. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barner, 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.