Citation Nr: 21008996 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-52 767 DATE: February 18, 2021 REMANDED The claim of entitlement to service connection for bilateral carpal tunnel syndrome (CTS) is remanded. The claim of entitlement to service connection for degenerative disc disease and spondylosis of the cervical spine (the neck) is remanded The claim of entitlement to service connection for degenerative disc disease and spondylosis of the lumbar spine (the back) is remanded. The claim of entitlement to service connection for a left shoulder disorder is remanded. The claim of entitlement to service connection for a left leg disorder is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1990 to August 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) regional office (RO). In October 2019, the Veteran testified in a videoconference hearing before the Board. In February 2020, the Board remanded the case for additional development. In December 2020, the Veteran testified in another Board videoconference hearing. Transcripts of each hearing have been included in the electronic record and have been reviewed. During the December 2020 Board hearing, the Veterans Law Judge (VLJ) informed the Veteran that his case would be decided by a panel of three VLJs and offered a third hearing before the third VLJ on the panel. The Veteran declined the Board’s offer. As such, the case is again before the Board for appellate review. See 38 U.S.C. § 7102(a); 38 C.F.R. § 20.604; Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). Another remand is warranted for the claims on appeal. In the first Board hearing, the Veteran described the ways in which he believes he incurred the several disorders subject to this appeal. In response, the Board remanded the claims for medical inquiry. In the second Board hearing, the Veteran asserted new theories of causation regarding how he believes he incurred the disorders during service, and/or developed them as the result of service-connected disabilities (right shoulder traumatic arthritis, residuals of a left fifth finger amputation, residuals of hernia surgery to include right leg disability, tinnitus, hearing loss, deviated nasal septum, and various scars). Inasmuch as the theories of causation introduced in the December 2020 hearing were not before the Board at the time of the February 2020 remand, or before the examiners who conducted the subsequent March 2020 VA compensation examinations, another remand is warranted for medical inquiry. The new examinations should provide a comprehensive assessment of each of the Veteran’s assertions. With regard to direct service connection, the Veteran asserts that arm, shoulder, leg, neck, and back disorders arose out of the rigors associated with his in-service duties as a truck driver. Crucial to his theory of direct service connection is his assertion that in-service problems with his right shoulder, right leg, and left hand, which were eventually service connected, led to overreliance during service on his arms, neck, back, left leg, and left shoulder. He also claims that a battery cover falling on his head and shoulder during service led directly to the neck, back, and left shoulder problems. With regard to secondary service connection, he asserts that overreliance after service on his arms, neck, back, left leg, and left shoulder led to secondary problems. He claims that, while working in labor-intensive jobs since service, he has had to favor his arms, neck, back, left leg, and left shoulder as the result of weaknesses associated with service-connected disability. The claim for a TDIU must be remanded as well because it is intertwined with the other remanded claims. See Smith v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001). The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the claims. All records/responses received must be associated with the electronic claims file. 2. Schedule an examination to determine the nature and etiology of bilateral CTS. After reviewing the claims folder, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a). Is it at least as likely as not (i.e., probability of 50 percent or more) that CTS had its onset during service, or is related to a disease, event, or injury during service? In answering this question, address the Veteran’s assertions that CTS resulted from the rigors of truck driving during service and from overreliance on his arms during service due to his right shoulder, right leg, and left hand disability. Address his claim during the December 2020 hearing that he recalls experiencing symptoms during service. (b). If the answer to (a) is negative, is it at least as likely as not that CTS is due to or caused by service-connected disability? (c). If the answers to (a) and (b) are negative, is it at least as likely as not that CTS has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected disorder(s). In answering (b) or (c), address the Veteran’s assertions that CTS resulted from overreliance on his arms after service due to right shoulder, right leg, and left hand disability. 3. Schedule an examination to determine the nature and etiology of any neck disorder. After reviewing the claims folder, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a). Is it at least as likely as not (i.e., probability of 50 percent or more) that a neck disorder had its onset during service, or is related to a disease, event, or injury during service? In answering this question, address the Veteran’s assertions that a neck disorder resulted from the rigors of truck driving during service and from overreliance on his neck during service due to right shoulder, right leg, and left hand disability. Address his claim during the December 2020 hearing that he recalls experiencing symptoms during service. (b). If the answer to (a) is negative, is it at least as likely as not that a neck disorder is due to or caused by service-connected disability? (c). If the answers to (a) and (b) are negative, is it at least as likely as not that a neck disorder has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected disorder(s). In answering (b) or (c), address the Veteran’s assertions that a neck disorder resulted from overreliance on his neck after service due to right shoulder, right leg, and left hand disability. 4. Schedule an examination to determine the nature and etiology of any back disorder. After reviewing the claims folder, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a). Is it at least as likely as not (i.e., probability of 50 percent or more) that a back disorder had its onset during service, or is related to a disease, event, or injury during service? In answering this question, address the Veteran’s assertions that a back disorder resulted from the rigors of truck driving during service and from overreliance on his back during service due to right shoulder, right leg, and left hand disability. Address his claim during the December 2020 hearing that he recalls experiencing symptoms during service. (b). If the answer to (a) is negative, is it at least as likely as not that a back disorder is due to or caused by service-connected disability? (c). If the answers to (a) and (b) are negative, is it at least as likely as not that a back disorder has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected disorder(s). In answering (b) or (c), address the Veteran’s assertions that a back disorder resulted from overreliance on his back after service due to right shoulder, right leg, and left hand disability. 5. Schedule an examination to determine the nature and etiology of any left shoulder disorder. After reviewing the claims folder, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a). Is it at least as likely as not (i.e., probability of 50 percent or more) that a left shoulder disorder had its onset during service, or is related to a disease, event, or injury during service? In answering this question, address the Veteran’s assertions that a left shoulder disorder resulted from the rigors of truck driving during service and from overreliance on his left shoulder during service due to right shoulder, right leg, and left hand disability. Address his claim during the December 2020 hearing that he recalls experiencing symptoms during service. (b). If the answer to (a) is negative, is it at least as likely as not that a left shoulder disorder is due to or caused by service-connected disability? (c). If the answers to (a) and (b) are negative, is it at least as likely as not that a left shoulder disorder has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected disorder(s). In answering (b) or (c), address the Veteran’s assertions that a left shoulder disorder resulted from overreliance on the left shoulder after service due to right shoulder, right leg, and left hand disability. 6. Schedule an examination to determine the nature and etiology of any left leg disorder. After reviewing the claims folder, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a). Is it at least as likely as not (i.e., probability of 50 percent or more) that a left leg disorder had its onset during service, or is related to a disease, event, or injury during service? In answering this question, address the Veteran’s assertions that a left leg disorder resulted from the rigors of truck driving during service and from overreliance on the left leg during service due to right shoulder, right leg, and left hand disability. Address his claim during the December 2020 hearing that he recalls experiencing symptoms during service. (b). If the answer to (a) is negative, is it at least as likely as not that a left leg disorder is due to or caused by service-connected disability? (c). If the answers to (a) and (b) are negative, is it at least as likely as not that a left leg disorder has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected disorder(s). In answering (b) or (c), address the Veteran’s assertions that a left leg disorder resulted from overreliance on the left leg after service due to right shoulder, right leg, and left hand disability. 7. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. Please explain in detail any opinion provided and the supporting rationale. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). (Continued on next page) G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals S. L. KENNEDY Veterans Law Judge Board of Veterans’ Appeals John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.