Citation Nr: 21011525 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 13-30 767 DATE: March 2, 2021 REMANDED The claim of entitlement to service connection for a cervical spine disorder, to include degenerative arthritis, is remanded. The claim of entitlement to service connection for a left wrist disorder, to include as secondary to a service-connected right wrist disability, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Air Force from August 1965 to August 1973. He received the Vietnam Service Medal, among other commendations. These matters come before the Board of Veterans’ Appeals (Board) from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in August 2018. A written transcript of that hearing has been prepared and is associated with the evidence of record. The Veteran’s left wrist claim has been developed and adjudicated as entitlement to service connection for all left wrist conditions, to include carpal tunnel syndrome (CTS) and arthritis. See Clemons v. Shinseki, 23Vet. App.1, 5(2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In March 2019, the Board remanded these matters to the RO for further development, including for a medical examination regarding the Veteran’s cervical spine claim and for an addendum opinion as to the Veteran’s left wrist claim. Although regrettable, additional remand is required for compliance with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c). 1. The claim of entitlement to service connection for a cervical spine disorder, to include degenerative arthritis, is remanded. The Veteran contends that his current cervical spine disorder is related to his active service. Specifically, he reports that his symptoms of cervical pain have worsened since active service. The Veteran testified that while serving in Vietnam, he was tasked with lifting 100-pound ammunition boxes onto trailers and fighter jets. Additionally, the Veteran, through his representative, asserted that he fell “from a forklift and incurred injury to his cervical spine.” See December 2013 Statement of Accredited Representative. As the Board noted in March 2019, Veteran has current diagnoses of cervical spine degenerative arthritis, stenosis, and spondylosis, as evidenced by VA treatment records dated August 2009 through June 2014. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a) and is a condition eligible for presumptive service connection. Walker, 708 F.3d 1331. While the Veteran’s service treatment records are negative for complaints of, treatment for, or a diagnosis of a cervical spine disorder, however, given the Veteran’s assertions that his cervical spine disorders is related to his strenuous active service duties as a munitions specialist, his report of ongoing neck pain, and the current diagnoses of record, the Board remanded this issue for VA examination and opinion. On remand, a VA physician provided medical opinions regarding the etiology of the Veteran’s cervical spine claim, as well as for with other matters included on the Board’s remand, such as a lumbar spine condition and lower extremity peripheral neuropathy. See January 2020 VA addendum opinions. Based on these opinions, the RO granted service connection for lumbar spine spondylosis with degenerative arthritis and right and left lower extremity radiculopathy as secondary to his lumbar spine condition. It appears, however, that the physician did not provide the Veteran with a medical examination concerning his neck, and relied only on the existing medical evidence to opine that the Veteran’s “cervical spine disorder, to include cervical spine degenerative arthritis, stenosis, and spondylosis, is less as likely as not manifested during, or as a result of, active military service.” The Board finds the medical addendum without examination fails to substantially comply with the Board’s prior remand directives, and that remand is again necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103(A); 38 C.F.R. § 3.159. 2. The claim of entitlement to service connection for a left wrist disorder, to include as secondary to a service-connected right wrist disability, is remanded. The Veteran contends that his current left wrist disorders are related to active service. The Veteran testified that while serving in Vietnam, he was tasked with lifting 100-pound ammunition boxes onto trailers and fighter jets. The Veteran reports that his symptoms of pain and numbness have worsened since active service. In the alternative, he asserts that his current left wrist disorders are due to his service-connected right wrist disability. As the Board previously noted, service treatment records include a September 1967 record that notes the Veteran injured his left-hand between two ammunition cans that resulted in pain and swelling. Post-service records include the report of an August 2013 VA examination noting diagnoses of left wrist arthritis and CTS. The examiner opined that these diagnoses were not related to active service. In providing this opinion, the examiner noted that the service treatment records were silent for complaints of and/or a diagnosis of a left wrist disorder. With respect to the secondary claim, the examiner noted that although there is an increased incidence in contralateral CTS in those affected by CTS on one side, it was not possible to determine the degree of contribution, if any, from the Veteran’s right CTS to the later development of his left CTS. The examiner concluded that the current left wrist disorders were not caused or aggravated by the service-connected right wrist disability. The Board found the August 2013 VA opinion inadequate to adjudicate the claim, as the examiner relied merely on a lack of medical evidence indicating left wrist problems during service and did not discuss the Veteran’s report and testimony of ongoing symptoms of pain and numbness since service. In addition, the examiner failed to provide any rationale with respect to his finding that it was not possible to determine the degree of contribution, if any, from the Veteran’s service-connected right wrist CTS to the later development of his left wrist CTS. On remand, the RO obtained an addendum opinion from a different clinician, as directed by the Board. This physician opined that the Veteran’s left wrist CTS and arthritis were less likely as not etiologically related to his active service and opined that the left wrist was less likely as not caused or worsened by the right wrist CTS. The examiner noted documented injuries to the Veteran’s left wrist during military service but explained that the Veteran had extensive diagnostic evaluation on many occasions without determination of left wrist pathology (CTS or arthritis). On the issue of secondary connection, the examiner opined that “there is no medical etiologic evidence that having carpal tunnel syndrome in one hand worsens or causes carpal tunnel syndrome in the contralateral hand.” In providing rationale for these findings, the clinician did not specifically address historic lay report of symptoms as the Board directed. Additionally, the January 2020 VA physician’s statement that there was “no medical etiologic evidence” of CTS in one hand causing or worsening the other hand contradicted the August 2013 examiner’s statement of there being a higher incidence of CTS in the contralateral hand in those affected by CTS on one side. Although it is the responsibility of the Board to weigh medical evidence, the Board is mindful that it cannot make its own independent medical determinations and, given the discrepancy in the medical opinions, the Board finds that a clarifying medical opinion is necessary to accurately adjudicate this appeal. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA and/or private treatment records that are not already associated with the claims file. If no records are available, the claims folder should indicate that fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the Veteran should be documented in the record. 2. Regarding the cervical spine claim, schedule the Veteran for a VA examination by an appropriate physician to address the etiology of any cervical spine disorder present during the period on appeal, to include cervical spine degenerative arthritis, stenosis, and spondylosis. All necessary tests and studies should be completed, and all clinical findings reported in detail. This examination may be either in-person or a virtual tele-examination, if appropriate. The examiner must review the record, to include service treatment records, post-service treatment records, and the Veteran’s lay statements, testimony, and contentions. The examiner must also consider the Veteran’s documented medical history and reported symptoms. The examiner must then provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that any cervical spine disorder, to include cervical spine degenerative arthritis, stenosis, and spondylosis, manifested during, or as a result of, active military service. In providing the opinions, the examiner must discuss the Veteran’s assertions and testimony, that his ongoing symptoms of upper neck pain, stiffness, and numbness have worsened since active service. The examiner should also review and consider the medical contentions included in the February 2021 Appellate Brief submitted by the Veteran’s representative. A complete rationale for all opinions must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the information needed. 3. Regarding the left wrist claim, obtain an addendum medical opinion from an appropriate physician clarifying the conflicting medical evidence of record regarding the Veteran’s claimed left wrist condition. The opining physician should review and consider all pertinent evidence of record, including prior VA examinations and opinions. If a new examination is deemed necessary to provide the requested opinions, one should be arranged by the RO. The opining physician should be asked to respond to the following: (a.) Please clarify and discuss the differing statements made among the August 2013 VA examinations (both the Peripheral Nerves Conditions and Wrist Conditions examinations) and the January 2020 BVA Addendum Medical Opinion regarding the Veteran’s left wrist conditions. Specifically, address the August 2013 statement that, “Although there is an increased incidence in contralateral CTS in those affected by CTS on one side, it is not possible to objectively determine the degree of contribution, if any, from the veteran’s Right CTS to the later development of his left CTS[,]” with the January 2020 Addendum Opinion statement that, “there is no medical etiologic evidence that having carpal tunnel syndrome in one hand worsens or causes carpal tunnel syndrome in the contralateral hand.” The Board encourages the opining clinician to clarify this discrepancy by citing current medical research on this question, if available. (b.) After clarifying the above statements, the physician should give a medical opinion as to the etiology of the Veteran’s left wrist CTS and arthritis present during the period of the claim. The examiner must address whether it at least as likely as not (i.e., at least 50 percent probable) that the current left wrist CTS and arthritis disorders are etiologically related to the Veteran’s active service. And, if not, the examiner should state a medical opinion with respect to any left wrist disorder present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the left wrist disorder(s) was caused or permanently worsened by the service-connected right wrist disability. Lastly, if the examiner believes that a left wrist disorder was permanently worsened by the service-connected right wrist disability, the examiner should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. In providing the above opinions, the examiner must consider the Veteran’s lay assertions and testimony that his ongoing symptoms of left wrist pain and numbness have worsened since active service. (Continued on the next page)   If the examiner is unable to give any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot give an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion due to a need for additional information, the examiner should identify the information needed. 4. After obtaining the above opinions and conducting any additional development deemed necessary, the Agency of Original Jurisdiction should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hart, 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.