Citation Nr: A21020071 Decision Date: 12/16/21 Archive Date: 12/15/21 DOCKET NO. 200520-86509 DATE: December 16, 2021 REMANDED Entitlement to service connection for left hand numbness is remanded. Entitlement to service connection for chronic right ankle pain is remanded. Entitlement to service connection for chronic right wrist pain is remanded. INTRODUCTION The Veteran served honorably on active duty in the United States Army Reserves during the Gulf War Era, from August 1995 to August 1998, and in the Army National Guard from August 2002 to July 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2019 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Following issuance of the Rating Decision on appeal, in January 2020 the Veteran submitted a Decision Review Request: Higher-Level Review (VA Form 20-0996) seeking de novo review of the evidence of record as of the date the RO notified him of the prior decision under review, specifically, January 2, 2020. 38 C.F.R. § 3.2601. After issuance of a Higher-Level Review Rating Decision dated May 2020, the Veteran submitted a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) in May 2020 electing Direct Review by a Veterans Law Judge (VLJ) of the evidence of record at the time of the RO's decision on appeal. 38 C.F.R. §§ 20.202(b)(1), 20.301. REASONS FOR REMAND As an initial matter, the Veteran's claims were previously denied on the merits by Rating Decision dated June 2018. Following submission of his Supplemental Claim in August 2019, the RO issued the December 2019 Rating Decision on appeal wherein, based upon receipt of new and relevant evidence, it readjudicated and denied on the merits the Veteran's claims for left hand numbness, chronic right ankle pain, and chronic right wrist pain. As a result, the Board is bound by this favorable finding and will not further address the issue of whether new and relevant evidence has been received. 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Next, the Veteran contends his claims for service connection relate to a period while serving "on State Active Duty for the Alabama National Guard," and the Rating Decision on appeal denied his claims due to not being related to "active duty." In addition to disabilities resulting from active duty service, service connection may also be established for a disability resulting from disease or injury incurred in or aggravated in the line of duty during a period of active duty for training (ACDUTRA), or for disability resulting from an injury (but not disease) incurred in or aggravated in the line of duty during a period of inactive duty for training (INACDUTRA). 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304. As such, the specific dates during which he was called to complete ACDUTRA or INACDUTRA while serving in the National Guard may be central to his claims. Because there is no information of record indicating the specific dates that the Veteran's service was characterized as ACDUTRA or INACDUTRA, remand is required to cure this pre-decisional duty to assist error. Entitlement to service connection for left hand numbness is remanded. The Veteran seeks entitlement to service connection for left hand numbness. In October 2019, he underwent a VA examination at which time the VA examiner rendered a negative nexus medical opinion submitted December 2019. For the reasons set forth below, the Board finds the VA examination report inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). First, according to the VA examiner, the Veteran has left hand carpal tunnel syndrome (CTS) which was "less likely than not incurred in or caused by the in line of duty medical records dated 8/26/2019 during service." Upon review, the Board observes the "8/26/2019" records referenced by the VA examiner consist of various service treatment records (STRs) and private medical treatment records submitted by the Veteran. Thus, it is unclear whether the VA examiner reviewed and considered the entirety of the Veteran's STRs and other pertinent evidence of record in formulating her opinion. Moreover, as written, the examiner's opinion is flawed as it fails to clearly and properly articulate whether the Veteran's left-hand numbness is or is not due to, related to, or otherwise etiologically associated with his active military service. Next, although it is well-settled that the absence of contemporaneous records alone is an insufficient rationale for a negative medical nexus opinion, the VA examiner's opinion appears to rely heavily upon a perceived lack of STRs reporting complaints or treatment for CTS. Significantly, however, the VA examiner's opinion is silent regarding pertinent STRs including an undated note and an October 2003 Annual Medical Certificate reporting left hand numbness. Although the Veteran was last discharged from active duty in July 2003, these medical records required consideration, nonetheless. Lastly, the VA examiner's opinion rationale is devoid of discussion of the Veteran's statements, including those noted in the October 2019 Peripheral Nerves Conditions Disability Benefits Questionnaire (DBQ) related to symptom onset and progression. See Dalton v. Peake, 21 Vet. App. 23, 40 (2007) (noting that a medical opinion which does not consider the Veteran's reports of symptoms and history, even if recorded in the course of the examination, is inadequate). In sum, the VA examiner's opinion as written is not supported by adequate analysis of the relevant evidence of record, fully articulated, or based upon sound reasoning and data. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As a result, the Board finds remand for an adequate VA medical nexus opinion is required to correct this pre-decisional duty to assist error. Entitlement to service connection for chronic right ankle pain is remanded. The Veteran contends his chronic right ankle pain is attributable to active military service. Additionally, in the Veteran's representative's Informal Hearing Presentation (IHP) dated April 2021 the representative first asserts that, "[t]he right ankle could well be connected to the knees and back." However, the record does not contain any lay or medical evidence as of the date the RO notified him of the Rating Decision under review (i.e., January 2, 2020) that reasonably raised the theory of entitlement to service connection on a secondary basis. The Board does not have authority to remand this issue solely for development of this new theory of entitlement. Under the Appeals Modernization Act (AMA), remands are limited to correction of: (1) duty to assist errors occurring prior to the date of the RO decision on appeal, and (2) RO errors in satisfying a regulatory or statutory duty if correction of such error would have a reasonable possibility of aiding in substantiating the Veteran's claim. 38 C.F.R. § 20.802(a). As such, the RO did not fail in its duty to assist the Veteran prior to issuing the December 2019 Rating Decision as the Veteran had not actually alleged, and the evidence did not support, that his chronic right ankle pain was secondary to his service-connected back and bilateral knee disabilities. In October 2019, the Veteran underwent a VA examination at which time the VA examiner rendered a positive nexus medical opinion submitted December 2019. Despite the positive nexus opinion, the Rating Decision on appeal held that, "there is no [Line of Duty] or complaints of this condition while on active duty therefore service connection remains denied." For the reasons set forth below, the Board finds the VA examination report inadequate for adjudication purposes. See Barr, 21 Vet. App. at 311. First, according to the VA examiner, the Veteran has a right ankle strain which was "at least as likely as not incurred in or caused by the in line of duty medical records dated 8/26/2019 during service." As discussed above, the "8/26/2019" records referenced by the VA examiner consist of various STRs and private medical treatment records submitted by the Veteran and, thus, it is unclear whether the VA examiner reviewed and considered the entirety of the STRs and other pertinent evidence of record in formulating her opinion. Moreover, as written, the examiner's opinion is flawed as it fails to clearly and properly articulate whether the Veteran's chronic right ankle pain is or is not due to, related to, or otherwise etiologically associated with his active military service. Next, the VA examiner's opinion rationale consists of a single sentence stating that, "[r]eview of the [V]eteran's Line of Duty Medical Records revealed that [he] had long history of ... ankle ... pain." The Board finds the VA examiner's abbreviated rationale is conclusory in nature and, as written, is not supported by adequate analysis of the relevant evidence of record, fully articulated, or based upon sound reasoning and data. See Miller v. West, 11 Vet. App. 18, 22 (2007) (bare conclusions, even those reached by healthcare professionals, are not probative without a factual predicate in the record); McCray, 31 Vet. App. at 257; Nieves-Rodriguez, 22 Vet. App. at 304. As a result, the Board finds remand for an adequate VA medical nexus opinion is required to correct this pre-decisional duty to assist error. Entitlement to service connection for chronic right wrist pain is remanded. The Veteran seeks service connection for chronic right wrist pain which he contends "had onset during the 2002-2003 mobilization." In October 2019 the Veteran underwent a VA examination at which time the VA examiner rendered a positive nexus medical opinion submitted December 2019. Nevertheless, despite the positive nexus opinion, the Rating Decision on appeal held that, "[t]here is no [Line of Duty] showing a ganglion cyst is related to military service therefore service connection remains denied." For the reasons set forth below, the Board finds the VA examination report inadequate for adjudication purposes. See Barr, 21 Vet. App. at 311. First, according to the VA examiner, the Veteran has a right wrist ganglion cyst which was "at least as likely as not incurred in or caused by the in line of duty medical records dated 8/26/2019 during service." As discussed above, the "8/26/2019" records referenced by the VA examiner consist of various STRs and private medical treatment records submitted by the Veteran and, thus, it is unclear whether the VA examiner reviewed and considered the entirety of the STRs and other pertinent evidence of record in formulating her opinion. Moreover, as written, the examiner's opinion is flawed as it fails to clearly and properly articulate whether the Veteran's chronic right wrist pain is or is not due to, related to, or otherwise etiologically associated with his active military service. Next, the VA examiner's abbreviated opinion rationale states that, "[t]he [V]eteran's medical records revealed [he] had long history of right wrist pain and that he was diagnosed with a ganglion cyst," and that, "[t]here is clinical evidence that he has continued to seek treatment for the complaint of the right wrist pain." The Board finds the VA examiner's rationale is conclusory in nature and, as written, is not supported by adequate analysis of the relevant evidence of record, fully articulated, or based upon sound reasoning and data. See Miller, 11 Vet. App. at 22; McCray, 31 Vet. App. at 257; Nieves-Rodriguez, 22 Vet. App. at 304. As a result, the Board finds remand for an adequate VA medical nexus opinion is required to correct this pre-decisional duty to assist error. Accordingly, these matters are REMANDED for the following action: 1. Verify through the appropriate agencies the specific dates of ACDUTRA or INACDUTRA from January 1, 2002, forward. The RO should prepare a summary of such dates, or document for the record why the production of a summary of service dates is not possible. All efforts to obtain these records should be fully documented. If records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, schedule the Veteran for an in-person VA medical examination with an examiner other than Dr. M.J.J-P. possessing the necessary expertise to fully assess and provide opinions regarding the nature, severity, and likely etiology of the Veteran's claimed left-hand, right ankle, and right wrist condition(s). The examiner must obtain a full history from the Veteran. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as in-service and post-service events, observable symptomology, and functional limitations. All pertinent symptomology and manifestations, including when they initially began, any progression or exacerbations, as well as any continuity of symptomology since onset must be elicited and reported in detail. Based upon a review of all pertinent evidence in the Veteran's claims file including medical treatment and prior examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history with clear conclusions and supporting data as to: (a.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) the Veteran's claimed left-hand condition manifested in or is the result of a disease or injury incurred in or aggravated in the line of duty during ACDUTRA service; or is the result of an injury incurred in or aggravated in the line of duty during INACDUTRA service. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) the Veteran's claimed right ankle condition manifested in or is the result of a disease or injury incurred in or aggravated in the line of duty during ACDUTRA service; or is the result of an injury incurred in or aggravated in the line of duty during INACDUTRA service. (c.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) the Veteran's claimed right wrist condition manifested in or is the result of a disease or injury incurred in or aggravated in the line of duty during ACDUTRA service; or is the result of an injury incurred in or aggravated in the line of duty during INACDUTRA service. In offering the above opinions, the examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record including, but not limited to: (a.) STRs dated October 2003 noting right wrist pain, right ankle pain, and left hand numbness; (b.) undated STR noting medical conditions including right wrist pain, right ankle pain, and left hand numbness; (c.) private treatment record dated August 2007 noting "ganglion cyst right wrist"; and (d.) the Veteran's August 2019 statement that his conditions occurred while on "State Active Duty for the Alabama National Guard." The examiner is advised that the mere absence of evidence does not equate to unfavorable evidence. The Veteran's lay statements and reports of onset and symptomology must be considered and discussed. A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record and, as warranted, relevant medical literature must be provided. (Continued on next page) T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.