Citation Nr: 21010434 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-38 191A DATE: February 24, 2021 REMANDED A claim for service connection for the left carpal tunnel syndrome is remanded. A claim for rating a right ankle disability in excess of 10 percent is remanded. REASONS FOR REMAND The Veteran honorably served on active duty from May 1980 to May 1984. In a July 2013 rating decision, the Regional Office (RO) denied his claims for service connection for the left carpal tunnel syndrome and a compensable rating for his right ankle disability. The Veteran appealed. In July 2018, the Veteran testified via a Board’s video conference hearing, a transcript of which is of record. In February 2021, the Board advised the Veteran that his appeals have been received but the Veterans Law Judge, who had heard his testimony in July 2018, was no longer with the Board. The Veteran was offered another hearing, which he declined and asked the Board to decide his claims based on the evidence of record. At this time, however, the Board must comply with the Court’s remand orders. In May 2019, the Board denied the claim for service connection for the left carpal tunnel syndrome and remanded the increased rating claim for the right ankle disability. In a June 2019 rating decision, the RO granted a rating for the right ankle disability at 10 percent, effectuated from the date of claim received on August 9, 2012. In September 2019, the Board denied a rating for right ankle disability in excess of 10 percent. The Veteran appealed both the May 2019 and the September 2019 Board’s decisions to the United States Court for the Veterans’ Appeals (Court). In April 2020, the Court approved a Joint Motion for Partial Remand (JMPR) vacating the May 2019 Board’s decision denying the claim for service connection for a left carpal tunnel syndrome and remanded the claim for further development. As was explained by the Veteran’s representative in a post-JMPR brief, inter alia, the Board must consider the VA examinations of record in light of the Court’s decision in Dalton v. Nicholson, 21 Vet. App. 23 (2007), holding that the VA examiners must consider the Veteran’s lay statements regarding the incurrence of the claimed disability and the continuity of symptomatology. Upon considering an August 2018 VA examination report, which does not specifically address the Veteran’s lay statements, the Board finds that obtaining a supplemental etiological opinion is warranted. In July 2020, the Court approved a JMPR vacating the September 2019 Board’s decision denying the claim for rating right ankle disability in excess of 10 percent and remanded the claim for further development. As stipulated in the JMPRs the parties agreed that, inter alia, the RO must provide the new medical examination as to the severity levels of the Veteran’s right ankle disability. Accordingly, the matters are REMANDED for the following action: 1. Obtain an etiological opinion as to the etiology of the Veteran’s left carpal tunnel syndrome. If a physical examination is necessary to answer the Board’s questions, one should be scheduled. The examiner is asked to answer the following questions: Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran’s left carpal tunnel syndrome was incurred in, caused by, or otherwise is etiologically related to his service? Why or why not? In forming an opinion, the examiner should review the April 27, 2020 appellant brief (Remand BVA or CAVC) to understand why the 2018 VA examination opinion was felt to be inadequate. The examiner should specifically discuss the Veteran’s lay statements as to the onset of symptomatology, treatment in service, and continuity of symptomatology, and any treatment since discharge, to include his statements made at the Board’s hearing (marked 07/31/2018 Hearing Transcript). In rendering a rationale for the formed opinion, the examiner must beware that the lack of contemporaneous medical treatment records is not the same as affirmative evidence of absence of pertinent symptomatology and/or treatment. In other words, the absence of evidence does not constitute substantive negative evidence and the examiner must not discount the competence or credibility of the Veteran’s lay reports of pertinent symptoms and treatment solely based on the lack of contemporaneous medical treatment records. (Continued on the next page)   2. Schedule the Veteran for an evaluation of the current severity levels of his right ankle disability. The examiner must include the range of motion measurements based on both active and passive motion in both weightbearing and non-weightbearing, as compared to the opposite joint. The examiner also must report any additional functional loss, if any, that may be imposed by the right ankle disability due to factors such as pain, fatigue, weakness, repetitive motion, use over time, instability, and/or incoordination shown on examination and during flare-ups as may be reported by the Veteran. The examiner is then asked to express any estimated additional functional loss, insofar as practicable, in terms of degree in the range of motion. If such an estimate cannot be made, the examiner is asked to explain why. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, 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.