Citation Nr: 21008576 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 18-39 447 DATE: February 17, 2021 REMANDED Entitlement to service connection for musculoskeletal disabilities of the right lower extremity (previously characterized as the right leg), is remanded. Entitlement to service connection for musculoskeletal disabilities of the right upper extremity (previously characterized as the right arm) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1969 to December 1970 including service in the Republic of Vietnam from February 1970 to December 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing has been associated with the record. In August 2019, the Board remanded the matters on appeal for evidentiary development. October 2019 VA examinations revealed several musculoskeletal disabilities of the right leg and right arm, to include a right ankle strain, arthritis of the right hip, right knee strain, right shoulder strain, and right wrist sprain. Consistent with this development, this appeal will consider all of these diagnosed disabilities and in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issues have been recharacterized as reflected on the title page to comport with the record. In June 2020, a VA examiner opined that these injuries were not caused or aggravated by the Veteran’s service connected cervical myelopathy, as there was “no physiological or anatomical linkage.” However, the examiner did not opine as to whether these musculoskeletal injuries were directly related to the Veteran’s service and there was no other competent evidence of record addressing this question. As a result, the issues were remanded again in August 2020 for updated examinations and opinions. Following additional examination, the RO issued a rating decision in December 2020 granting service connection for a right ankle strain. Consequently, the claim for service connection for a right ankle strain has been granted in full and is not currently on appeal. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its prior remand; therefore, the Veteran's appeal must be remanded once again. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this issue so that the Veteran is afforded every possible consideration. 1. Entitlement to service connection for musculoskeletal disabilities of the right leg is remanded. 2. Entitlement to service connection for musculoskeletal disabilities of the right arm is remanded. In multiple lay statements and during hearing testimony, the Veteran has asserted that his musculoskeletal disabilities began during his active duty service. The Veteran’s service treatment records show that an x-ray of his right lateral knee was ordered following a fall in November 1970. In the August 2020 remand, the Board directed the RO to obtain medical opinions from qualified VA examiners that adequately address the nature and etiology of the Veteran's musculoskeletal disabilities. The Veteran underwent VA examinations to assess the nature and etiology of his musculoskeletal disabilities in November 2020. Upon examination, the VA examiner opined that the Veteran's right knee strain is less likely than not incurred in or caused by service. His rationale was that the Veteran’s right knee strain started in 2009 and not during service. The examiner opined that the Veteran’s right hip osteoarthritis is less likely than not incurred in or caused by service. His rationale was that the Veteran’s pain in right hip started in 2009 and that there is no evidence of right hip pain during service. The examiner opined that the Veteran’s right wrist sprain is less likely than not incurred in or caused by service. His rationale was that the Veteran’s pain in his right wrist started in 2009 and that there is no evidence of right wrist pain during service. The examiner opined that the Veteran’s right shoulder strain is less likely than not incurred in or caused by service. His rationale was that the Veteran’s right shoulder pain started in 2009 and there is no record of right shoulder pain during service. The Board finds the November 2020 VA examinations inadequate for several reasons. First, the examiner based his negative opinions on the absence of any documented musculoskeletal disabilities during service without consideration of the Veteran's lay contentions regarding onset and continuity of symptomatology of his musculoskeletal disabilities. An opinion based on the absence of in-service complaint or diagnosis without consideration of a veteran's competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Additionally, the Veteran has consistently and credibly reported suffering from these disabilities since discharge from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that a veteran's statement is competent evidence as to events that are capable of lay observation). Moreover, the VA examiner did not support his conclusions with a sufficient medical rationale, therefore the Board finds this opinion to be inadequate and accords it no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, and sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Finally, the examiner based his negative opinions on an inaccurate review of the evidence. In this regard, the examiner’s nexus opinions erroneously state that the Veteran’s pain from his musculoskeletal disabilities began in 2009 when, in fact, he stated he has had pain in his shoulder for ten years, pain in his right wrist for more than ten years, pain in his right knee for ten years, and did not report the history of his right hip osteoarthritis to the examiner. Additionally, the examiner did not acknowledge the instance of an x-ray being ordered following a fall in November 1970. Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). In light of the above, the Board finds that the Veteran's claim must be remanded once again because the RO did not comply with the Board's prior remand directive to obtain an adequate medical opinion on the Veteran's behalf. See Stegall, 11 Vet. App. at 268. On remand, an addendum medical opinion must be obtained that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). The matters are REMANDED for the following actions: Forward the Veteran's claims file to a qualified VA examiner, who has not yet provided an opinion in this case, to provide an addendum opinion addressing the nature and etiology of the Veteran's musculoskeletal disabilities of the right leg and right arm. A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. Thereafter, the examiner should provide an opinion with respect to the following 1. Musculoskeletal disabilities of the right lower extremity, to include a right knee strain and right hip osteoarthritis. (a) State whether the criteria for any pertinent diagnoses are met. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran’s right lower extremity musculoskeletal disabilities, to include a right knee strain and arthritis of the right hip (diagnosed in an October 2019 VA examination), (i) began in service, (ii) were caused by service, or (iii) are caused or aggravated by the Veteran’s service-connected cervical spine disabilities (to include degenerative disease with intervertebral disc disease and myelopathy/radiculopathy). The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. 2. Musculoskeletal disabilities of the right arm, to include a right wrist sprain and a right shoulder strain. (a) State whether the criteria for any pertinent diagnoses are met. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran’s right upper extremity musculoskeletal disabilities, to include a right shoulder strain and a right wrist sprain (diagnosed in an October 2019 VA examination), (i) began in service, (ii) were caused by service, or (iii) are caused or aggravated by the Veteran’s service-connected cervical spine disabilities (to include degenerative disease with intervertebral disc disease and myelopathy/radiculopathy). In providing the above opinion, the examiner must adequately consider and address the relevance, if any, of the November 1970 service treatment record showing that an x-ray of the Veteran’s lateral right knee was ordered after the Veteran stepped in a ditch and fell. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. The examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. It is imperative that the requested medical opinion reconcile all available evidence of record, to include the Veteran’s lay statements, hearing testimony, post-service medical records, including all prior VA examinations and medical opinions, and any other pertinent evidence of record. The examiner is advised that the Veteran is competent to report his medical history, including when his symptoms began, and such reports must be acknowledged and considered in formulating any opinion. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. It should be noted that a lack of documented treatment for the claimed disability in service, while probative, cannot serve as the sole basis for a negative finding. The examiner must provide a complete rationale for any opinions offered, citing to the examiner’s own expertise, medical principals, and/or evidence in the Veteran’s record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. (Continued on the next page)   The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran’s claim. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rosenthal, Ariana 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.