Citation Nr: 21012454 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-36 383 DATE: March 4, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. Entitlement to service connection for a deviated nasal septum is remanded. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from October 1990 to April 1996 as a vehicle mechanic. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans’ Law Judge at a July 2019 Board video conference hearing. A transcript of the hearing has been associated with the claims file. The claims were previously before the Board in December 2019. A September 2020 order of the United States Court of Appeals for Veterans Claims (Court) implemented a September 2020 Joint Motion for Partial Remand (JMPR), vacating and remanding, in part, the December 2019 Board decision that denied entitlement to service connection for a lumbar spine disability and entitlement to service connection for bilateral upper extremity peripheral neuropathy. As such the issues of entitlement to service connection for a lumbar spine disability and service connection for bilateral upper extremity peripheral neuropathy are again before the Board. Previously, the claims for entitlement to service connection for a deviated nasal septum and entitlement to TDIU were remanded in December 2019 for addition development. As discussed below, the Board’s prior remand directives have not been substantially complied with, and as such the case is again before the Board and additional development is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a lumbar spine disability 2. Entitlement to service connection for bilateral upper extremity peripheral neuropathy The Veteran contends that service connection is warranted for a lumbar spine disability and that service connection is warranted for bilateral upper extremity peripheral neuropathy. In light of the points raised by the parties in the JMPR and a Board review of the claims file a remand is warranted for additional development. The parties to the September 2020 JMPR found that the Board failed to ensure VA satisfied its duty to assist in making reasonable efforts to obtain identified outstanding private medical records. Specifically, the parties noted that in February 2013, the Veteran reported undergoing private treatment for his arm and low back disabilities, and treatment from Dr. H. The Board notes that since the September 2020 JMPR, private treatment records from Dr. H. have been associated with the claims file. Also a review of the claims file notes that the Veteran in July 2019 testified to ongoing exclusive private treatment for the disabilities on appeal. However, on remand the RO should notify the Veteran to identify and authorize for release any additional outstanding treatment records relating to the claims on appeal. As such the Board finds a remand is warranted for additional development. In addition, the parties to the JMPR noted that the Board previously failed to address the Veteran’s in-service symptoms of and treatment for bilateral carpal tunnel syndrome and the use of bilateral splints. The Board notes that the Veteran was afforded a VA examination in February 2020, and the examiner noted no peripheral nerve condition of the upper extremities. However, the U.S. Court of Appeals for the Federal Circuit recently found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders v. Wilkie, 886 F.3d 1356, 136768 (Fed. Cir. 2018). Here, there have been complaints of numbness and pain bilaterally in the Veteran’s hands which impacts his ability to grip items and in regular use including completing activities of daily living. In light of Saunders v. Wilkie, a remand is needed as pain alone can serve as a functional impairment and therefore qualify as a disability. The Veteran reports ongoing upper extremity pain, numbness and tingling which results in him being unable to grip items and regularly dropping items. As such a remand is warranted for a supplemental VA examination. Entitlement to service connection for a deviated nasal septum The Veteran contends that service connection is warranted for a deviated nasal septum. In addition, the Veteran contends a TDIU is warranted based on his service connected disabilities, which is discussed in greater detail below. Previously, the claims were before the Board in December 2019 and were remanded for additional development. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Moreover, the Court has held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Although on remand the RO obtained a VA examination regarding to the Veteran’s deviated nasal septum, the VA examination failed to fully address direct service connection including the Veteran’s lay statements including his hearing testimony that a vehicle battery exploded in his fact that fractured his nose. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a deviated nasal septum because no VA examiner has opined as to direct service connection. A VA opinion in March 2020 found that the Veteran’s deviated nasal septum was less likely than not incurred in or caused by an in-service accident while working on a truck. The examiner noted that there is documented evidence of nose trauma when the Veteran was younger, possibly before service. However, the examiner failed to provide a thorough reasoned rationale for the conclusions reached, the in-service injury and fully address the conflicting opinions of record. STRs at entrance to service in March 1990 noted normal clinical evaluation of the Veteran’s nose, and sinuses. Further a private opinion from August 2019 has been associated with the claims file noting that it is more likely than not that his deviated nasal septum and nasal fracture are due to injuries sustained during his service in the Air Force. As such a remand is warranted for a supplemental VA opinion. 4. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) Finally, because a decision on the remanded service connection issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any outstanding private treatment records. Make two requests for the authorized records from any identified and authorized for release private treatment records, unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s upper extremity symptoms of numbness and tingling and whether: (a.) Identify any current upper extremity disability, to include symptoms of numbness, tingling and pain. The examiner should address whether pain results in functional impairment and therefore qualifies as a disability if warranted. (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current upper extremity disability is caused by an in-service injury, event or disease including treatment for carpal tunnel syndrome? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Service treatment records note in February 1994 the Veteran was seen for bilateral wrist pain, bilateral carpal tunnel syndrome was provisionally noted and the Veteran the prescribed bilateral splints. Attention is invited to the VA examination in February 2020 noting no upper extremity peripheral nerve condition, and that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In addition, the Veteran reports ongoing bilateral upper extremity pain, weakness and numbness and difficulty with grip and dropping items. 3. Obtain an addendum opinion from an appropriate clinical regarding the Veteran’s deviated nasal septum and whether: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s deviated septum is caused by an in-service injury, event or disease, including in-service surgical repair? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. STRs at entrance to service in March 1990 noted normal clinical evaluation of the Veteran’s nose, and sinuses. STRs note in April 1994 the Veteran underwent a deviated septum repair. Although difficult to read, the record does note “obstruction felt to be secondary to trauma” but not clearly indicating a recent nasal fracture. At separation in April 1996 the Veteran reported ongoing ear, nose and throat trouble. In addition, attention is invited to the VA examination in March 2020 noting that the Veteran’s deviated nasal septum was less likely than not incurred in or caused by an in-service accident while working on a truck. The examiner noted that there is documented evidence of nose trauma when the Veteran was younger, possibly before service. However, the examiner failed to provide a thorough reasoned rationale for the conclusions reached and fully address the conflicting opinions of record. Further, a private opinion from August 2019 has been associated with the claims file noting that it is more likely than not due to injuries sustained during his service in the Air Force. In addition, attention is invited to the Veteran’s statements noting since his in-service injury and service he has had ongoing allergies and difficulty breathing out of his nose. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.