Citation Nr: 21008541 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-41 276 DATE: February 17, 2021 REMANDED Entitlement to service connection for a neck disability to include as secondary to a service-connected disability of right-hand 4th metatarsal fracture healed with deformity is remanded. Entitlement to service connection for right upper extremity, peripheral neuropathy to include as secondary to service-connected disability of right-hand 4th metatarsal fracture healed with deformity and a neck disability, currently on appeal is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1963 to June 1966. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2014 and January 2016 rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the claim of service connection for right upper extremity, peripheral neuropathy was adjudicated by the RO as a petition to reopen a prior claim. According to the RO, the claim was previously denied in November 2014. A review of the procedural history shows that in a November 2014 rating decision, the RO denied service connection for bursitis and peripheral neuropathy, right upper extremity (claimed as right hand). In July 2015, the Veteran filed a Notice of Disagreement (NOD) indicating that he was appealing the November 2014 decision made for his right hand which is connected to his upper right extremity and his eye condition. In a September 2015 Statement of the Case (SOC), the RO only addressed the issue of service connection for an eye condition and noted that the Veteran’s right-hand condition will be addressed in a separate rating decision. In a September 2015 rating decision, the RO granted service connection for right hand 4th metatarsal fracture healed with deformity (previously addressed as bursitis and peripheral neuropathy, right upper extremity). In January 2016, the Veteran filed a claim for a neck condition secondary to his service-connected “right hand injury condition with residuals of right-side paralysis, peripheral nerve paralysis.” In a January 2016 rating decision, the RO denied service connection for a neck condition and denied service connection for right upper extremity peripheral neuropathy because the evidence submitted was not new and material. In February 2016, the Veteran filed a NOD, indicating that he was appealing his right-hand 4th metatarsal fracture healed with deformity, (previously addressed as bursitis and peripheral neuropathy, right upper extremity). The Veteran expressed that he has numbness in his thumb and index finger and that he has pain in his hand, arm, neck, and shoulder, and that the pain travels up and down his right side from his hand to his neck. As the July 2015 NOD was timely with respect to the November 2014 rating decision, and the Veteran indicated that he was appealing the decision made for his right hand which is connected to his upper right extremity, the Board finds that the November 2014 rating decision did not become final and new and material evidence is not needed with regard to the right upper extremity, peripheral neuropathy. In March 2019 and March 2020, the Board remanded the issues above in order to obtain an adequate VA examination. 1. Entitlement to service connection for a neck disability to include as secondary to service-connected disability of right-hand 4th metatarsal fracture healed with deformity is remanded. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). Pursuant to the Board’s March 2020 remand, the RO was instructed to secure an opinion from a VA examiner responsive to the question of whether the Veteran’s neck disability had its onset during service or is otherwise related to service to include as a result of the Veteran’s contention that he sustained a neck injury after he fell from a tank in service. In addition, the opinion was to also address whether the Veteran’s neck disability was proximately caused by or aggravated by the Veteran’s service-connected right-hand disability. Specifically, the Board instructed the examiner that two separate opinions, one for causation and a second for aggravation, should be provided. The Veteran was afforded a VA medical opinion in September 2020. The examiner opined that the Veteran’s claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner stated that the Veteran sustained a right-hand 4th metacarpal fracture in service that was treated with a cast. The examiner stated that the Veteran has been diagnosed with a neck condition that is separate and unrelated to his healed right-hand fracture. The examiner expressed that hand fractures do not contribute to the etiology of neck conditions. Thus, the examiner opined that it is less than likely than not that the claimed neck disability was proximately due to or the result of the Veteran’s right-hand 4th metatarsal fracture healed with deformity. Although instructed by the March 2020 remand, the September 2020 opinion does not address the Veteran’s contention that his neck disability is a result from a fall from a tank in service and does not include a separate aggravation opinion requested by the Board. Thus, the September 2020 VA examination report is inadequate to make an informed decision on the Veteran’s claim and does not constitute substantial compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, a new VA examination must be provided. The Board encourages the Veteran and his representative to submit any evidence, to include any positive private medical opinions relating the Veteran’s neck disability to service and/or secondary to the Veteran’s right hand disability, that will assist in the adjudication of the Veteran’s claims. 2. Entitlement to service connection for right upper extremity, peripheral neuropathy to include as secondary to service-connected disability of right-hand 4th metatarsal fracture healed with deformity and a neck disability, currently on appeal is remanded. The Board notes that in its March 2020 Board remand, the Board expressed that the Veteran’s claim for service connection for right upper extremity, peripheral neuropathy is inextricably intertwined with the issue of entitlement to service connection for a neck disability which was being remanded for further adjudication. The Veteran was provided an addendum opinion in September 2020. In this regard, the September 2020 VA examiner noted that the Veteran’s right upper extremity peripheral neuropathy is more than likely than not related to the Veteran’s neck disability. Therefore, the examiner opined that it was less likely than not proximately due to or the result of the Veteran right-hand disability. Although the examiner indicated that the Veteran’s peripheral neuropathy is more likely related to the Veteran’s neck disability, the examiner did not indicate whether the Veteran’s peripheral neuropathy is aggravated by the Veteran’s right-hand disability. When VA provides a medical examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007). Thus, on remand, the Veteran should be afforded a VA addendum opinion that discusses aggravation. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Encourage the Veteran and his representative to submit any evidence, to include any positive private medical opinions relating the Veteran’s neck disability and/or peripheral neuropathy to service and/or secondary to the Veteran’s right-hand disability, that will assist in the adjudication of the Veteran’s claims. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s neck disability. The claims file to include a copy of this REMAND must be made available to the examiner for review. All indicated tests should be performed.    The VA examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s neck disability began in service, was caused by service, or is otherwise etiologically related to his military service. The examiner must discuss the Veteran’s contention that his neck disability is a result of the Veteran falling from a tank in service. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran’s neck disability was proximately caused or aggravated by the Veteran’s service-connected right-hand disability. The examiner should note that this question requires two separate opinions: one for proximate causation and a second for aggravation. The term “aggravation” means a permanent worsening of the Veteran’s disability beyond its natural progression.  The examiner is advised that the Veteran is competent to report injuries and symptoms, and his reports must be considered and discussed in formulating the requested opinions. If his reports are discounted, the examiner should provide an explanation for doing so.  The Board notes that service treatment records are to be taken into consideration and reviewed by the examiner, but that the absence of documented treatment in service is not fatal to a service connection claim.   All findings and conclusions should be supported with complete rationale, and review of the file should be noted in the report.  4. Obtain an addendum opinion in order to determine the nature and etiology of the Veteran’s right upper extremity, peripheral neuropathy. The claims file to include a copy of this REMAND must be made available to the examiner for review.  The VA examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s right upper extremity, peripheral neuropathy was aggravated by the Veteran’s service-connected right-hand disability. The examiner should note that the term  “aggravation” means a permanent worsening of the Veteran’s disability beyond its natural progression.  All findings and conclusions should be supported with complete rationale, and review of the file should be noted in the report.  LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. 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.