Citation Nr: 21006102 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-10 778 DATE: February 3, 2021 REMANDED Entitlement to service connection for a cervical spine disability to include degenerative disc disease as secondary to bilateral knee degenerative joint disease is remanded. Entitlement to service connection for bilateral thumb degenerative joint disease as secondary to bilateral knee degenerative joint disease is remanded. Entitlement to service connection for left little finger degenerative joint disease as secondary to bilateral knee degenerative joint disease is remanded. REASONS FOR REMAND The Veteran served in active duty service with the Air Force from July 1969 to March 1973. This matter is on appeal from a March 2011 rating decision. The Veteran was afforded a March 2019 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. The Board remanded this appeal in August 2019 for additional development. The Board notes the issues on appeal in the August 2019 remand were for entitlement to service connection for a lumbar spine disability to include degenerative disc disease as secondary to bilateral knee degenerative joint disease; cervical spine disability to include degenerative disc disease as secondary to bilateral knee degenerative joint disease; bilateral thumb degenerative joint disease as secondary to bilateral knee degenerative joint disease; and left little finger degenerative joint disease as secondary to bilateral knee degenerative joint disease. During the pendency of the appeal, an October 2020 rating decision granted service connection for a lumbar spine disability. As such, the issues remaining on appeal are for entitlement service connection for a cervical spine disability to include degenerative disc disease as secondary to bilateral knee degenerative joint disease; bilateral thumb degenerative joint disease as secondary to bilateral knee degenerative joint disease; and left little finger degenerative joint disease as secondary to bilateral knee degenerative joint disease. The Board finds that remand is warranted for additional development. Cervical spine disability In the August 2019 remand, the Board instructed the Veteran be scheduled for an examination to determine the nature and etiology of the Veteran’s cervical spine disability. The Board requested an opinion on whether the Veteran’s cervical disability was caused by service-connected bilateral knee disability and whether it was at least as likely as not aggravated by the Veteran’s service-connected bilateral knee disability. The Board notes that a November 2019 medical opinion was obtained; however, while the examiner opined it was less likely than not that the Veteran’s cervical spine disability was proximately due to or the result of his service-connected bilateral knee disability, the examiner did not address whether there was aggravation or an established baseline level of severity of the Veteran’s cervical spine disability. Bilateral thumb and left little finger degenerative joint disease At the Veteran’s March 2019 hearing, the Veteran testified that his duties in service involving refueling vehicles required him to attach and remove fueling hoses multiple times a day; The Veteran states that he did this work five to fifteen times a day all year, resulting in aching hands and fingers. The Veteran also stated that his thumb and left little finger disabilities were related to his service-connected knee disabilities because he described that whenever his knees gave out and caused him to fall, he would need to grab or slam his hand against the wall or a desk to steady himself or break his fall and therefore hurt his hands. The Veteran also indicated that he was unsure whether x-ray testing had been performed on his hands to confirm the diagnosis for arthritis in the thumbs and left little finger; review of the medical treatment record shows notations for reported degenerative joint disease of the thumbs but no x-ray testing to confirm these findings. As noted in the August 2019 Board remand, review of the claims record showed that the Veteran had not been afforded a VA examination and opinion regarding the nature and etiology of the Veteran’s claimed bilateral thumb and left little finger disabilities to include as due to service-connected knee disabilities. The Board decision instructed that a VA examination be scheduled for the Veteran and that in the opinion the Veteran’s March 2019 testimony regarding the Veteran’s duties handling fuel hoses and statements describing hurting his hands from falls when his knees gave out. Review of the claims record shows a November 2019 medical opinion was obtained. The November 2019 VA examiner opined that the Veteran’s bilateral thumb and left little finger disabilities were not due to or aggravated by the Veteran’s service-connected bilateral knee disabilities. The examiner also opined that it was less likely than not that the Veteran’s bilateral thumb and left little finger disabilities were related to the Veteran’s active duty service, stated that there was ”insufficient medical evidence of record to draw this conclusion” and that there were no medical visits related to falls severe to enough to cause pain. However, the examiner did not address the Veteran’s March 2019 testimony where he stated his duties with refueling hoses caused pain in his hands nor discuss whether there was a baseline severity of the Veteran’s claimed bilateral thumb and left little finger disability which to address aggravation by service-connected knee disabilities. Under these circumstances, the Board finds the November 2019 opinions inadequate and the August 2019 Board remand directives were not substantially complied with; therefore, another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). Therefore, the Board finds that remand for compliance with the August 2019 Board remand instructions is warranted. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Obtain an addendum opinion regarding the nature and etiology of the Veteran’s cervical disability. The record and a copy of this remand must be made available to the examiner. The VA examiner should opine as to the following: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s cervical disability is due to his service-connected bilateral knee condition. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s cervical disability is aggravated by his service-connected bilateral knee condition. “Aggravation” is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of disability prior to aggravation. (c.) If the Veteran’s cervical disability is NOT aggravated by his service-connected bilateral knee condition, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s disability had its onset during, or is otherwise related to, her active duty service. (d.) In addressing any of the above, the VA examiner should discuss the Veteran’s statements regarding VA doctors telling him that his changed gait from his knees impacted his cervical spine, and the May 2011 VA knee examination observations of abnormal gait and walk due to knee pain. 3. Obtain an addendum opinion to determine the nature and etiology of the Veteran’s bilateral thumb and left little finger disability. The record and a copy of this remand must be made available to the examiner. The VA examiner should opine as to the following: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral thumb and left little finger disability is due to his service-connected bilateral knee condition. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral thumb and left little finger disability is aggravated by his service-connected bilateral knee condition. (c.) “Aggravation” is defined as any worsening beyond the natural progression of the disability. The examiner should also establish a baseline level of disability prior to aggravation. (d.) If the Veteran’s bilateral thumb and left little finger disability is NOT aggravated by his service-connected bilateral knee condition, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral thumb and left little finger disability had its onset during, or is otherwise related to the Veteran’s active duty service. (e.) In addressing any of the above, the VA examiner should discuss the Veteran’s March 2019 testimony regarding his duties in active duty service handling fuel hoses multiple times a day resulting in pain in his hands, and statements hurting his hands from falls when his knees give out. (f.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. (g.) If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). (h.) If the examiner cannot provide an answer because further information is needed to assist in making the determination, all reasonable steps to obtain the missing information should be exhausted before concluding that the answer cannot be provided. (i.) The examiner should provide a complete rationale for any opinion provided, and if the examiner is unable to provide any opinion request, then the examiner should state so and why. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, 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.