Citation Nr: 21008715 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-18 580 DATE: February 17, 2021 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for arthritis is remanded. Entitlement to service connection for an upper respiratory disorder, to include sinusitis and rhinitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1985 to March 1993. This appeal before the Board of Veterans’ Appeals (Board) arose from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2015 and October 2018, the Board remanded the claims discussed herein for further evidentiary development. Service Connection for Disabilities of the Neck, Right Hip, Left Hip, Right Leg, Left Leg, Right Knee, Left Knee, Right Ankle, and Left Ankle The Board remanded the claims for service connection for disabilities of the neck and of the bilateral lower extremities in order to determine the nature and etiology of any such current neck, hip, leg, knee, and ankle disabilities. In remanding the claims, the Board noted that in Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018), the United States Court of Appeals for Federal Circuit held that pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38U.S.C.§1110. Thus, the Board requested that a VA examiner consider whether the Veteran had pain which caused impairment involving any of the claimed neck, hip, leg, knee, or ankle disabilities. The Veteran was afforded a VA examination of his neck, hips, legs, knees, and ankles in September 2019. With respect to the claimed neck, bilateral leg, and bilateral ankle disabilities, the examiner opined that the Veteran did not have a current diagnosis for either of these disabilities. The examiner, however, did not appear to consider whether the Veteran had current pain of any right-side extremity joint that resulted in functional impairment such as to qualify for a disability, as the Board directed. See Saunders, supra. A remand by the Board confers on a claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, with respect to each claim involving the neck, and the bilateral lower extremities, in providing negative etiology opinions, the examiner relied extensively on a lack of objective evidence establishing neck, hip, leg, knee, or ankle injury during service, or manifesting to a compensable degree during service or within one year of the Veteran’s separation form service. The Board notes, however, that, with respect to the Veteran’s hips, legs, and knee, the examiner’s assertions are factually incorrect. In this regard, the Veteran service treatment records (STRs) reveal that he was seen thigh in November and December 1987, after suffering direct trauma to his, as a result of an injury incurred while playing softball. He was seen for enduring thigh pain in September 1989. He additionally reported having pain to his left knee and hip after the November 1987 softball injury. Thus, the examiner’s opinions as to these claims are not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Additionally, the examiner did not appear to consider, or did not provide reasons for discounting, the Veteran’s assertions that he experienced ankle, knee, leg, and hip pain as a result of completing duties in civil engineering and in aircraft generation store and supply during service, or his assertions that he injured his knees and ankles during service as a result of jumping off of trucks. Thus, the examiner’s opinions are also inadequate where she has relied primarily on an apparent absence of objective evidence of in-service injury in providing the negative etiology opinions. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion). Given the foregoing deficiencies in the September 2019 VA examination reports, remand of these claims is warranted to afford the Veteran adequate VA examinations. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Service Connection for Upper Respiratory Disorder With respect to the Veteran’s claim for service connection for an upper respiratory condition, in remanding this claim in October 2018, the Board noted that the Veteran had a current diagnosis of allergic rhinitis, as noted in a private treatment report dated in March 2017, and that he was noted to suffer from seasonal allergies multiple times during his active service. Pursuant to the remand, he was afforded a VA examination in September 2019. In the examination report, the examiner indicated that there was a lack of sufficient objective medical evidence to establish a chronic upper respiratory condition or residuals thereof. In providing a negative etiology opinion, the examiner opined that the Veteran’s in-service upper respiratory diagnosis, which apparently included sinusitis and rhinitis, was acute only. Further, the examiner incorrectly noted that the Veteran had only one complaint in service, in July 1992, and that there had been no treatment for sinusitis or allergic rhinitis in the private treatment records submitted. Thus, the examiner relied on inaccurate factual premises in providing the negative etiology opinion. See Reonal, 5 Vet. App. at 461. Accordingly, remand is warranted to afford the Veteran a new VA examination for his claimed upper respiratory disability. See Barr, 21 Vet. App. at 312. Service Connection for Arthritis As for the Veteran’s claim for service connection for arthritis, as the Board noted in the October 2018 remand, this matter is inextricably intertwined with the claims for service connection for disabilities of the neck, hips, knees, and ankles, as these claims also involve potential arthritis. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, this claim must also be remanded. Accordingly, these matters are REMANDED for the following action: 1. Arrange for the Veteran to undergo new VA examination(s) of his neck, hips, legs, knees, and ankles. Any and all indicated studies and tests deemed necessary by the examiner should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should: (a.) clearly identify all neck, hip, leg, knee, and ankle disabilities/conditions—including any arthritis, and any condition that is manifested by pain and results in functional impairment of earning capacity—currently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved). (b.) For each such identified disability/condition, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that such had its onset during service, or is otherwise medically-related to the Veteran’s service, to include the trauma suffered to his thigh and reported pain to his left knee and hip after a softball injury during service, and/or as a result of his duties in civil engineering and in aircraft generation store and supply, and/or as a result of jumping off of trucks during service. In addressing the above, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include private treatment records reflecting the Veteran’s reports of/treatment for pain involving his knees, hips, and legs, and his lay assertions as to the nature, onset, and continuity of his symptomatology. The examiner is advised that the Veteran is competent to report his orthopedic symptoms, including pain. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The absence of documented evidence of symptoms in or shortly after service should not serve as the sole basis for a negative opinion for a claimed disability. 2. Also, arrange for the Veteran to undergo a new VA upper respiratory condition examination. Any and all indicated studies and tests deemed necessary by the examiner should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should: (a.) identify all current upper respiratory conditions, to include allergic rhinitis diagnosed in March 2017—currently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved). (b.) For each diagnosed upper respiratory condition, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that such condition had its onset during service, or is otherwise medically-related to the Veteran’s service, to include the multiple noted instances of seasonal allergies suffered during service. In addressing the above, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include the Veteran’s lay assertions as to the nature, onset, and continuity of upper respiratory condition symptomatology. The examiner is advised that the Veteran is competent to report his upper respiratory condition symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The examiner is hereby advised that the absence of documented evidence of symptoms in or shortly after service should not serve as the sole basis for a negative opinion. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for VA medical examination may impact the determinations made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.