Citation Nr: 21006665 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-32 116A DATE: February 4, 2021 REMANDED Entitlement to service connection for neck disability is remanded. Entitlement to service connection for right shoulder disability is remanded. Entitlement to service connection for right arm disability is remanded. Entitlement to service connection for right hand disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from February 1957 to February 1959. In November 2017, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. In an October 2019 decision, the Board denied entitlement to service connection for neck disability, right shoulder disability, right arm disability, and right hand disability. In September 2020, the Veteran appealed the Board’s October 2019 decision to the United States Court of Appeals for Veteran Claims (Court) which granted a Joint Motion for Remand (JMR) filed by the parties. The Court’s Order vacated and remanded the matter to the Board for consideration consistent with the terms of the joint motion. 1. Entitlement to service connection for neck disability. 2. Entitlement to service connection for right shoulder disability. 3. Entitlement to service connection for right arm disability. 4. Entitlement to service connection for right hand disability. The parties agreed that the Board erred when it failed to ensure compliance with its prior March 2018 remand and erred when it relied on inadequate VA medical opinions in denying the Veteran’s claims for service connection. See Joint Motion at 2. Regarding the Veteran’s cervical spine and right shoulder/arm disabilities, the parties indicated that the June 2019 VA examiner’s opinion failed to discuss the post-service imaging records and lay statements regarding onset of his disabilities. Rather, the parties state that the VA examiner’s opinion was based “solely on the lack of documentation of the reported in-service injury and the absence of any record of treatment within the service treatment records or post-service record until 2005.” Id. at 2-3. The parties indicated that there was no discussion by the VA examiner of the “old” cervical spine injury noted in the Board’s March 2018 remand, and that the examiner further failed to provide any discussion of the Veteran’s lay statements regarding his in-service injury and symptoms since service. Id. Specific to the Veteran’s right hand, the parties disagreed with the VA examiner’s finding of no diagnosed disability. The parties indicated that the examiner based the finding on the Veteran’s “lay statements that his hand had resolved 2 years earlier.” However, the parties state that even assuming the Veteran’s statement is true, his report “suggests there may have been a disability during the pendency of the appeal period.” Id. In this regard, the Board acknowledges a recent Federal Court decision of Saunders v. Wilkie, 886 F.3d 1356 (2018), where VA must consider whether the Veteran’s reported pain causes functional impairment such that it may qualify as a disability in the event an underlying diagnosis is not provided. Thus, a new opinion should be obtained on remand to address whether the Veteran has functional impairment for which service connection may be granted. In light of the recent holding in Saunders and the deficiencies raised in the joint motion, the Board concludes that a remand is necessary to obtain an adequate medical opinion which takes into consideration the Veteran’s medical history and lay statements. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Neck Disability Obtain an addendum opinion from a qualified medical professional to determine the nature and etiology of the Veteran’s claimed neck disability. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Based on the review of the record, the examiner should provide an addendum opinion on the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s claimed neck disability began during active service or is causally related to service? Is at least as likely as not (a 50 percent or greater probability) that the Veteran’s neck disability manifested within one year of his service discharge and, if so, describe the manifestations. In rendering the opinion, the examiner is asked to consider medical records (to include the June 2010 x-rays of the cervical spine and January 2017 CT of the cervical spine) and lay evidence of record. A complete rationale for all opinions is requested. 2. Shoulder/Arm Disability Obtain an addendum opinion from a qualified medical professional to determine the nature and etiology of the Veteran’s claimed right shoulder and right arm disability. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Based on the review of the record, the examiner should provide an addendum opinion on the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s claimed right shoulder/arm disability began during active service or is causally related to service? Is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right shoulder/arm disability manifested within one year of his service discharge and, if so, describe the manifestations. In rendering the opinion, the examiner is asked to consider medical records (to include the March 2011 MRI of the right shoulder) and lay evidence of record. A complete rationale for all opinions is requested. 3. Right Hand Disability Obtain an addendum opinion from a qualified medical professional to determine the nature and etiology of the Veteran’s claimed right hand disability. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Based on the review of the record, the examiner should provide an addendum opinion on the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s claimed right hand disability, including right hand pain, began during active service or is causally related to service? Is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right hand disability, including right hand pain, manifested within one year of his service discharge and, if so, describe the manifestations. The provided opinion should reflect consideration of the medical and lay evidence of record setting forth a complete rationale for all findings and conclusions. 4. Upon completion of the requested development and any additional development deemed appropriate, adjudicate the claims on appeal. If the determination remains unfavorable, the Veteran and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. Then, return the case to the Board.] KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, Associate 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.