Citation Nr: 21013089 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-40 243 DATE: March 8, 2021 REMANDED Entitlement to service connection for a left hand condition, to include as secondary to the service-connected right hand condition, is remanded. Entitlement to service connection for a left knee condition, to include as secondary to the service-connected right knee condition, is remanded. REASONS FOR REMAND The Veteran had active service from January 1980 to January 1983. The Veteran appeared and provided sworn testimony before the undersigned Veterans Law Judge during a May 2019 videoconference hearing. A transcript of that proceeding is associated with the claims file. This appeal as to the claims of service connection for the left hand condition and left knee condition was previously before the Board in September 2019, and August 2020, wherein the Board remanded the claims for further development. However, as discussed below, the Board finds that the RO did not substantially comply with the 2019 or the 2020 remand instructions and finds that, unfortunately, another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). Specifically, in the 2019 Board remand, the Board noted that the Veteran submitted a notice of disagreement in which he stated that the Social Security Administration (SSA) had awarded him disability benefits for his hands and knees. Although the RO requested those records, the electronic claims file does not contain any records relating to this Veteran’s SSA disability benefits application or award, but rather a different individuals records were sent from SSA. As those records are potentially relevant to the claims on appeal, and VA has a duty to assist the Veteran in obtaining them, the RO must again request the Veteran’s SSA records and ensure the correct records are received. See 38 U.S.C. § 5103A; 38C.F.R. § 3.159(c)(2). Next, the Board requested addendum opinions as to whether the Veteran’s left-hand condition was caused or aggravated beyond natural progression by the service connected right hand condition, and to specifically discuss the Veteran’s contentions that the left hand condition was due to overuse. Although the October 2020 examiner provided an opinion, the Board finds a new opinion is warranted. Namely, the 2020 examiner noted that the condition of one hand “does not cause a condition of the contralateral hand” and stated this is established medical knowledge as a basis for the rationale, and also stated the arthritis is part of the natural aging process and arthritis does not spread from one joint to the other. However, the examiner merely stated accommodative use would not cause the left hand condition but did not provide any discussion of this particular Veteran’s conditions, nor was there a discussion as to the Veteran’s 2014 right hand surgery when the Veteran was in a cast for weeks, and whether that aggravated the Veteran’s left hand condition. As noted, the remand directives specifically requested an opinion due to overuse, the Veteran’s medical records show he underwent surgery in 2014, and his doctor noted that after surgery, his right hand and forearm would be immobilized for 6 weeks followed by several months of therapy, and specifically that “during that period of time, he will have limited right hand use.” Finally, since the October 2020 SSOC, VA obtained additional possibly pertinent evidence in the form of VA medical records, which included notation that the Veteran uses assistive devices to walk. This evidence may be pertinent as the two opposing knee opinions from the VA examiner and the private doctor are based on whether the Veteran has had an abnormal gait and/or leg discrepancy for secondary service connection. As such, the Board finds it appropriate to remand the matters to ensure the proper SSA records are obtained, and following completion of any further development, schedule updated examinations if necessary and request new opinions. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all available SSA disability benefits records. Ensure the file is for THIS Veteran. Document all efforts and any negative responses in the claims file 2. Obtain VA Medical records from December 2020 to present and associate them with the claims file. 3. Send to the Veteran a letter requesting that he provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. 4. DO NOT PROCEED with the following until all the above records have been obtained, to the extent possible. 5. IF AND ONLY IF the above findings warrant a new examination, schedule updated VA examinations for his left knee condition and left hand condition. 6. Obtain an addendum opinion from an examiner to address the etiology of the Veteran’s left hand condition. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinions. Then, the examiner must opine as to the following, with full supporting rationales: (a.) whether it is at least as likely as not (50 percent or better probability) that the Veteran’s left hand/wrist condition was caused by his service-connected right hand condition? Please address the argument that the current left hand condition was caused by overuse due to his service-connected right hand condition. (b.) whether it is at least as likely as not (50 percent or better probability) that the Veteran’s left hand/wrist condition was aggravated by his service-connected right hand condition? Please address the argument that the current left hand condition was aggravated by overuse due to his service-connected right hand condition, to include the 2014 post-right hand surgery. A complete explanation should be provided for all opinions on causation AND aggravation. The examiner is advised that aggravation of a condition for legal purposes is defined as any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. The examiner is also asked to consider the August 2020 private examination report which noted during the finger testing that the Veteran did not have ankylosis, but during the wrist examination, noted the Veteran did have ankylosis of the thumbs, and clarify whether his bilateral hands are, in fact, ankylosed. The examiner must also consider: • the STRs showing the right hand, wrist, and finger injuries and that he had been in a cast for 3 months and a splint for 6 weeks during service; • The September 2014 medical noted from Dr. D.K., who stated that the Veteran was to undergo right thumb joint surgery, and after surgery his right hand and forearm will be immobilized for 6 weeks followed by several months of therapy. “During that period of time, he will have limited right hand use.” • The 2019 Board hearing where he testified that he had sprained his left hand playing basketball in service, and that he overcompensated from his right hand before and after the surgery; that even though he is left-hand dominant, he used his right hand for different activities and was even-handed. He stated that following the surgery, he had to use his left hand for everything; and • the August 2020 opinion from Dr. R.S., who reviewed and discussed the Veteran’s medical history and opined that it is “more likely than not the injuries that he sustained are directly causally related to the present bilateral wrist/hand problems.” (Continued on the next page)   Rationale must be provided for opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.