Citation Nr: 21012951 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 10-47 193 DATE: March 8, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for cervical strain (excluding the period of a temporary total rating from December 10, 2010, to January 31, 2011) is remanded. Entitlement to service connection for a right upper extremity (RUE) disability (other than cervical radiculopathy), to include as secondary to service-connected right shoulder and cervical spine disabilities, is remanded. Entitlement to service connection for a respiratory disability including asthma and hyperactive airway due to environmental irritant, to include as secondary to service-connected allergic rhinitis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1986 to September 1991 and in the United States Air Force from May 2003 to September 2003, August 2004 to October 2004, November 2004 to January 2005, and May 2006 to October 2006. These matters were most recently before the Board in March 2017 at which time they were remanded for further evidentiary development. Although the Board regrets the additional delay, remand is again needed to ensure compliance with the previous remand requests and to ensure that the duty to assist has been fulfilled. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that an additional claim was remanded by the Board in March 2017 regarding the propriety of a rating reduction for service-connected irritable bowel syndrome. However, a decision was promulgated by the Board on that issue in November 2019 and it is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As a final matter before turning to the claims, the Veteran’s representative requested that any future medical opinions obtained regarding the claims on appeal be independent medical opinions from orthopedic specialists. However, the Board notes that VA examiners are presumed to be competent absent evidence they lack the education, training, or experience to offer medical diagnoses, statements, or opinions. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009); Cox v Nicholson, 20 Vet. App. 563, 569 (2007). Accordingly, the Board finds that adequate medical opinions may be obtained from clinicians selected to perform Compensation and Pension examinations within the VA system. 1. Entitlement to a disability rating in excess of 10 percent for cervical strain (excluding the period of a temporary total rating from December 10, 2010, to January 31, 2011) is remanded. The Veteran was granted service connection for cervical strain at 10 percent disabling, effective October 30, 1997. In January 2010, she submitted a claim for increase. A temporary total rating was subsequently granted from December 10, 2010, to January 31, 2011, for surgery and convalescence. As such, she seeks a rating in excess of 10 percent outside of that period. The March 2017 remand requested a new VA examination to evaluate the current extent and severity of the Veteran’s cervical spine disability and to also obtain information not collected on previous examinations with regards to additional functional loss during flare-ups and after repeated use. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Further, the Veteran has additional diagnoses in the cervical spine in addition to cervical strain. Notably, she was diagnosed with cervical degenerative disc disease (DDD) at C5-C7, cervical spondylosis at C5-C6 and C6-C7, and status-post cervical discectomy and fusion. A June 2013 examiner determined that the additional cervical diagnoses were not secondary to the Veteran’s service-connected right shoulder disability but did not provide any opinion as to whether the additional cervical diagnoses were secondary to her service-connected cervical strain. Although the Board did not specify that an opinion should be obtained as to whether the additional cervical diagnoses are related to the cervical strain, the examiner was asked to distinguish between symptoms related to the cervical strain and those related to the additional cervical diagnoses. Finally, the examiner was asked to determine whether the Veteran had cervical radiculopathy secondary to the cervical strain and if so, its severity. A VA examination was conducted in October 2020. The evaluation captured additional loss in terms of degrees of range of motion during flare-ups and with repeated use over time. Mild radiculopathy involving the upper radicular nerve was diagnosed. However, the examiner stated that such radiculopathy was unrelated to cervical strain as it was more commonly caused by cervical spondylosis. Further, the diagnoses of degenerative arthritis, cervical spondylosis of C5-C6 and C6-C7, and status post C5-C6 discectomy were unrelated to cervical strain. The only rationale offered was that degenerative arthritis is caused by the normal wear-and-tear of aging. The Board finds that a new examination is needed to fulfill the March 2017 remand requests and to address all theories of entitlement. The October 2020 examiner concluded without explanation that the additional cervical diagnoses were not related to the service-connected cervical strain. She merely offered that degenerative arthritis was due to aging without discussing the Veteran’s in-service incidents leading to service connection of the cervical disability and the specifics of her medical history. As such, there remains no adequate medical opinion of record determining whether the additional diagnoses are the result of the service-connected cervical strain. Given the fact that the Veteran has already been awarded a temporary total rating for the discectomy that was performed to treat the additional diagnoses of cervical spondylosis and degenerative arthritis, it is imperative that clarity be obtained regarding why these conditions were deemed separate from and unrelated to the service-connected condition. Further, because the examiner found cervical radiculopathy to be secondary to one of the additional cervical diagnoses, whether there are neurologic manifestations of the service-connected disability remains pending. If the cervical radiculopathy is again determined to be related to a nonservice-connected cervical disability, an adequate rationale for that finding should be obtained, as one was not provided at the October 2020 examination. Additionally, as there are neurologic symptoms in the right upper extremity that may be separate from a cervical etiology, if radiculopathy is found to be related to a service-connected cervical disability, the examiner should clearly differentiate any symptomology attributable to cervical radiculopathy and any symptomology attributable to another etiology. 2. Entitlement to service connection for a RUE disability (other than cervical radiculopathy), to include as secondary to service-connected right shoulder and cervical spine disabilities, is remanded. The Veteran has contended that symptomology in her RUE is attributable either to her service-connected right shoulder disability or cervical spine disability. There are multiple diagnoses regarding the RUE, including right humerus chondrosarcoma, right elbow lateral epicondylitis, and right wrist carpal tunnel syndrome (CTS). In June 2013, a VA examiner determined that the Veteran’s right humerus chondrosarcoma and right elbow lateral epicondylitis were not proximately due to, the result of, or aggravated by the right shoulder disability as there was no clinical correlation or nexus between the conditions, one did not cause the other, and they were clinically separate conditions. In October 2016, a VA examination was conducted to determine whether the Veteran’s right CTS was the direct result of service or was secondary to service-connected disabilities. The examiner determined that her right CTS had not been caused, related to, or aggravated by right shoulder surgeries, as such a nexus could not be supported by known peer literature and because CTS was not present until 2007. The examiner also found the Veteran’s reported symptomology to be inconsistent with the clinical symptomology of CTS. The March 2017 remand requested a new VA examination and opinion to address whether a RUE disability other than cervical radiculopathy was the direct result of service or whether it was caused or aggravated by the Veteran’s service-connected cervical disability, as those questions had not been answered by the prior examiners. An opinion was obtained in November 2019 which essentially reiterated the October 2016 opinion. A VA peripheral nerves examination was conducted in October 2020 at which right CTS involving the medial nerve and right upper radicular nerve cervical radiculopathy were diagnosed. The examiner determined that right CTS was less likely than not incurred in or caused by an in-service helicopter incident or caused or aggravated by the service-connected cervical strain. In support, she stated that according to medical literature, risk factors for carpal tunnel included heredity, repetitive hand use, hand and wrist position, pregnancy, and health conditions such as diabetes, rheumatoid arthritis, and thyroid gland imbalance. The Board finds that a new opinion is needed before a decision may be rendered on the claim. The October 2020 examiner merely listed risk factors for CTS without determining whether or not the Veteran had any of those risk factors or without doing any analysis regarding the contentions. As such, it is an inadequate basis upon which to determine the claim. Additionally, the March 2017 remand requested the examiner to consider multiple relevant in-service notations other than the helicopter incident, none of which were discussed. Finally, the examiner concluded that right CTS was not aggravated by the cervical strain on a stricter standard than necessary, noting that it was not “permanently worsened beyond the natural progress of the disorder.” Subsequent to the March 2017 remand, the Court of Appeals for Veterans Claims (Court) indicated that the correct standard for the aggravation prong of secondary service connection under 38 C.F.R. § 3.310 is whether there was “any increase” in the disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019). As the Board instructed the medical examiner to apply the permanent worsening standard of aggravation, a new opinion applying the correct standard is needed. 3. Entitlement to service connection for a respiratory disability including asthma and hyperactive airway due to environmental irritant, to include as secondary to service-connected allergic rhinitis, is remanded. The Veteran has contended that asthma is the result of environmental exposures, such as sandstorms and burn pits, during her service in Desert Storm/Shield or was caused or aggravated by her service-connected allergic rhinitis. A pulmonary function test (PFT) was conducted in June 2008 which demonstrated asthma, not otherwise specified (NOS). Subsequent treatment records reflected an ongoing diagnosis of and treatment for asthma. A VA examination conducted in July 2010 confirmed the diagnosis but did not provide an etiology opinion. Another examination was conducted in March 2016. The examiner determined that the June 2008 clinician that diagnosed asthma did not clearly and unmistakable establish a diagnosis of chronic asthma, much less a diagnosis of asthma that was due to underlying allergies. He continued that, at best, the clinician diagnosed a mild case of asthma and then expressed some second thoughts about it. As such, the examiner found it less likely than not that the Veteran developed asthma that was due to allergies aggravated by service. Another VA examination was conducted in October 2016. The examiner determined that there was insufficient evidence to warrant or confirm a diagnosis of acute or chronic asthma or its residuals given a normal PFT, x-ray, and examination. He continued that the Veteran’s narrative was not consistent with the definition of asthma as defined in medical literature. He stated it was instead consistent with hyperactive airway due to environmental irritant. He suggested that this was service connected as allergic rhinitis. The Board noted in the March 2017 remand that there was a diagnosis of asthma in the record to be considered for purposes of service connection regardless of later findings suggesting no diagnosis. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim, even if the disability resolves prior to adjudication of the claim). A new examination was requested which considered direct and secondary theories of entitlement. The examiner was advised that for the purposes of the remand requests, the Veteran had a confirmed diagnosis of asthma and that she indicated on an August 2003 post-deployment health assessment that she had often been exposed to sand and dust. Another examination was conducted in October 2020. The examiner concluded that it was less likely than not that asthma had its onset in or was related to service including environmental hazards during Desert Storm/Shield or that it was aggravated by service-connected allergic rhinitis. In support, she stated that there was no chronic diagnosis of asthma. The examiner again noted the prior diagnosis of hyperactive airway due to environmental irritant. The Board finds that a new examination and opinion are needed before a decision may be rendered on the claim. The examiner disregarded the remand instructions to presume a diagnosis of asthma during the appeal period and did not provide an etiology opinion or rationale. Further, the examiner concluded that asthma was not aggravated by allergic rhinitis on a stricter standard than necessary, noting that it was not “permanently worsened beyond the natural progress of the disorder.” See Ward v. Wilkie, 31 Vet. App. at 233. As the Board instructed the medical examiner to apply the permanent worsening standard of aggravation, a new opinion applying the correct standard is needed. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional other than the October 2020 examiner to determine the extent and severity of her service-connected cervical spine disability. Following a review of the record, the examiner is asked to address the following: (a.) All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion. (b.) The examination should include testing results on both active and passive motion, and in weight-bearing, and nonweight-bearing. The examiner should assess where pain begins on the Veteran’s initial range of motion and upon repetitive testing. The examiner should also describe any pain, weakened movement, excess fatigability, and incoordination present. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (c.) The examiner should estimate any additional functional loss in terms of additional degrees of limited motion of the cervical spine experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s descriptions as to the severity, frequency, and duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. (d.) The examiner should identify all diagnoses of the cervical spine, specifically to include cervical DDD at C5-C7, cervical spondylosis at C5-C6 and C6-C7, and status-post cervical discectomy and fusion, and should provide an opinion whether it is at least as likely as not (50 percent probability or greater) than any additional diagnoses are proximately caused or aggravated (i.e., worsened beyond natural progression) by the service-connected cervical strain. A complete rationale should be provided which reconciles the Veteran’s award of a temporary total rating for a December 2010 discectomy which, according to the October 2020 examiner, was conducted to treat cervical spondylosis and degenerative arthritis. (e.) If the examiner determines that the additional cervical diagnoses are unrelated to the service-connected cervical strain, he or she should clearly distinguish which symptomology is attributable to the service-connected condition and which is attributable to the nonservice-connected conditions. (f.) The examiner should also discuss any neurological abnormalities of the upper extremities, to include radiculopathy, paresthesias, weakness, etc., resulting from the service-connected disability. The examiner is asked to address the Veteran’s complaints of radiating pain, numbness, and tingling of the RUE, as well as her complaints of neck pain, and numbness and tingling of the fingers, and to determine whether such symptomology is at least as likely as not (50 percent probability or greater) proximately caused or aggravated by the service-connected cervical disability. A complete rationale should be provided which reconciles the March 2016 VA opinion finding cervical radiculopathy to be highly likely related to in-service injuries and the October 2020 opinion finding cervical radiculopathy to be commonly caused by cervical spondylosis. (g.) If the Veteran is found to have neurological abnormalities secondary to the service-connected cervical disability, the examiner should determine the severity of such symptomology. Further, the examiner is asked to distinguish between symptoms related to the service-connected cervical disability, the service-connected right shoulder disability, or another etiology in the RUE. Any other indicated testing (to include EMG/NCV) should be conducted as necessary. (h.) The examiner is asked to consider the Veteran’s lay statements of record regarding the functional impact of her cervical spine disability. 2. Schedule the Veteran for a VA examination with an appropriate medical professional other than the October 2020 examiner to determine the nature and etiology of any RUE disability other than cervical radiculopathy. Following a review of the record, the examiner is asked to address the following: (a.) Whether it is at least as likely as not (50 percent probability or greater) that any RUE disability other than cervical radiculopathy, to include, but not limited to, right CTS, had its onset in or is otherwise related to active service. The examiner is specifically asked to address the following: 1. June 1991 service record reflecting that the Veteran had complained of RUE paresthesias after she was involved in a motor vehicle accident; 2. August 1991 service record disclosing that the Veteran had complained of having intermittent right paresthesias; 3. August 1996 neurology consult containing the Veteran’s report that since 1991, she has had intermittent numbness on the right side of her body; and 4. August 2008 Medical Board Evaluation noting that the Veteran had been involved in a helicopter incident with a very hard landing in which she hit the ground at 80 knots. (b.) Whether it is at least as likely as not (50 percent probability or greater) that any RUE disability other than cervical radiculopathy, to include, but not limited to right CTS, was proximately caused or aggravated (i.e., worsened beyond natural progression) by the Veteran’s service-connected cervical disability. In determining whether her claimed condition is aggravated by a service-connected disability, discuss a baseline level of severity of the claimed condition established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. (c.) A complete and fully explanatory rationale should be provided for any opinion. If any opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, by a deficiency in the record, or because the examiner does not have the needed knowledge or training. 3. Schedule the Veteran for a VA examination with an appropriate medical professional other than the October 2020 examiner to determine the nature and etiology of a respiratory disability, to include asthma and hyperactive airway due to environmental irritant. For purposes of the opinion, the examiner is advised that the Veteran has had a confirmed diagnosis of both asthma and hyperactive airway due to environmental irritant during the appeal period. Following a review of the record, the examiner is asked to address the following: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s respiratory disability, including asthma and hyperactive airway due to environmental irritant, had its onset in or is otherwise related to active service, specifically to include exposures to environmental hazards (e.g., burn pits, sandstorms, human waste) during active service in Desert Storm/Shield (the Veteran served in Southwest Asia from September 8, 1990, to April 1, 1991). The examiner’s attention is drawn to the August 2003 post-deployment health assessment on which she reported that she had often been exposed to sand/dust. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s respiratory disability, including asthma and hyperactive airway due to environmental irritant, was proximately caused or aggravated (i.e., worsened beyond natural progression) by the Veteran’s service-connected allergic rhinitis. In determining whether her claimed condition is aggravated by a service-connected disability, discuss a baseline level of severity of the claimed condition established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. (c.) If the Veteran’s respiratory disability is found to be directly related to service or to be secondary to allergic rhinitis, to the extent that there is any overlapping symptomology, the examiner should distinguish the manifestations of the respiratory disability from those of allergic rhinitis. (Continued on the next page)   (d.) A complete and fully explanatory rationale should be provided for any opinion. If any opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, by a deficiency in the record, or because the examiner does not have the needed knowledge or training. 4. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated with consideration of all evidence of record. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.