Citation Nr: 21009286 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-11 532 DATE: February 22, 2021 REMANDED Entitlement to service connection for a left lung pulmonary disability, other than bronchitis, is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1964 to August 1968. This appeal comes to the Board of Veterans Appeals (Board) from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In March 2020, the Board remanded the claims for further development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). 1. Entitlement to service connection for a left lung pulmonary disability, other than bronchitis, is remanded. 2. Entitlement to service connection for a left hip disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. Issues 1-3. The Veteran, and his representative, contends that his current disabilities stem from service. More specifically, for his pulmonary disability, the Veteran maintains that it is due to or the result of in-service episodes of acute bronchitis. For his left hip disability, the Veteran argues that it is due to or the result of a mass that was removed from his left thigh during service. Lastly, for the right knee disability, the Veteran maintains that it is due to or the result of an in-service automobile accident. See generally Hearing Transcript (December 2019). For reasons explained below, the Board finds that remand is necessary. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As an initial matter, the Board notes that, in March 2020, the claims were remanded for, among other things, VA examinations and medical opinions. Although VA examination reports and medical opinions were obtained in November 2020, the Board finds that there has not been substantial compliance with its prior remand. First, with regard to the VA examination reports for the lungs and knees, the reports are inadequate because they are not shown to be based on an accurate factual premise with consideration of the Veteran’s prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). For instance, the knee examination report reflects a single diagnosis for right knee strain, even though the record contains evidence of degenerative joint disease (DJD) of the knees. See CAPRI (October 2020) (finding DJD of the knees without effusion). Similarly, the lung examination report shows that the Veteran was diagnosed with a left lung pulmonary nodule. However, the examiner found that the Veteran did not have bronchiectasis even though the record reflects assessments for the condition. In this regard, treatment records, VA and private, show that the Veteran has been diagnosed with bronchiectasis in the medial left lower lobe. See CAPRI (May 2013), Medical Treatment Record-Non-Government Facility (February 2017) & Medical Treatment Record-Government Facility (December 2018). Second, with regard to the VA medical opinions, the examiner found the Veteran’s disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of the conclusions, the opinions noted in-service treatment records, the physical examination, and the absence of documented in-service and post-service medical records. The Board finds the opinions inadequate because the essential rationale for the opinions is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Although the opinions concluded that the Veteran’s disabilities were not caused by the claimed in-service injury, event, or illness, they do not provide the Board a reasoned rationale supporting the conclusions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“a medical opinion . . . must support its conclusion with analysis that the Board can consider and weigh against contrary opinions”). Moreover, the opinions seem to rely, for the most part, on the absence of documented medical treatment records, during and after service, showing complaints or treatment for any of the disabilities. Although the Veteran, as a lay person, is not competent to opine on the etiology of the delay onset of his disabilities; he is, however, competent to report signs and symptoms of his disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Thus, the applicable regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16 (1991). In this regard, the Veteran has submitted lay evidence suggesting that he continued to have symptoms or signs related to his left hip and right knee disabilities, but did not go to “sick call” because “[i]f you complain[] you are criticized, reprimanded, or in some cases discharged.” See Form 9 (February 2017). The clinician is not required to accept the Veteran’s theory that his military service caused either of his disabilities, or that he had symptoms associated with any disability during or following military service if this is incongruous with the record; the clinician, however, is required to fully explain why he or she disagrees with the Veteran’s theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusions. If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. Given the above, the Board may not rely upon the examination reports and opinions in their present form and, therefore, finds the medical evidence is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr, 21 Vet. App. 303. Accordingly, as the Board has a duty to ensure compliance with the terms of its remand, remand is again required. Stegall, 11 Vet. App. 268. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms of his pulmonary disability, left hip disability, and right knee disability, to include from Center for Bone & Joint Disease, and from Access Health. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain all VA treatment records dated from November 2020 to the Present. 3. Schedule the Veteran for an examination(s) by an appropriate clinician(s) to determine the nature and etiology of any (1) left lung pulmonary disability, (2) left hip disability, and (3) right knee disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician(s). Based on examination and review of the record, detail the Veteran’s reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any of the above disabilities. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician must opine on: Left Lung Pulmonary Disability (a) Whether any left lung pulmonary disability (other than bronchitis) is at least as likely as not related to an in-service injury, event, or disease. Consider and expressly address in-service complaints related to episodes of acute bronchitis. Explain. (b) For bronchiectasis, whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Explain. Left Hip Disability (c) Whether any left hip disability is at least as likely as not related to an in-service injury, event, or disease. Consider and expressly address whether the disability stems from in-service surgery, in which, a mass was removed from the Veteran’s left thigh. Explain. (d) For arthritis of the left hip, opine on whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Explain. [Note: Prior to a left hip joint replacement, the record showed that the Veteran had arthritis of the left hip during the pendency of the claim.] Right Knee Disability (e) Whether any right knee disability is at least as likely as not related to an in-service injury, event, or disease. Consider and expressly address whether the disability is related to an in-service automobile accident. Explain. (f) For arthritis of the right knee, opine on whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Explain. 4. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.