Citation Nr: 21013792 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-05 924 DATE: March 10, 2021 REMANDED Entitlement to service connection for back disability is remanded. Entitlement to service connection for neck disability is remanded. Entitlement to service connection for headache disability is remanded. Entitlement to service connection for bilateral shoulder disability is remanded. Entitlement to service connection for bilateral wrist disability is remanded. Entitlement to service connection for bilateral elbow disability is remanded. Entitlement to service connection for bilateral hip disability is remanded. Entitlement to service connection for bilateral upper extremity (BUE) numbness is remanded. Entitlement to service connection for bilateral lower extremity (BLE) numbness is remanded. Entitlement to service connection for BUE arthritis is remanded. Entitlement to service connection for BLE arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from January 1990 to February 2000. He also had subsequent periods of active duty for training and inactive duty for training in the Air Force Reserves from February 2000 to January 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran requested a hearing with the Board, he has since expressed to VA in writing the intention to withdrawal the requested Board hearing. See Hearing Request (November 2015). Since the withdrawal request was received prior to the scheduled hearing date, the Board finds that the hearing request has been withdrawn. 38 C.F.R. § 20.704(e). These matters were previously remanded by the Board for additional development in December 2017 and April 2020. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although VA medical opinions were obtained in May 2020 and October 2020 in accordance with the prior Board remand, for the reasons provided below, they are inadequate. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). 1. Entitlement to service connection for back disability. 2. Entitlement to service connection for neck disability. 3. Entitlement to service connection for headache disability. 4. Entitlement to service connection for bilateral shoulder disability. 5. Entitlement to service connection for bilateral wrist disability. 6. Entitlement to service connection for bilateral elbow disability. 7. Entitlement to service connection for bilateral hip disability. 8. Entitlement to service connection for BUE numbness. 9. Entitlement to service connection for BLE numbness. 10. Entitlement to service connection for BUE arthritis. 11. Entitlement to service connection for BLE arthritis. Issues 1 – 11: First, the clinicians did not provide opinions regarding whether the Veteran has bilateral elbow, bilateral hip, bilateral wrist, bilateral upper extremity, and bilateral lower extremity disabilities that are manifested by pain and functional impairment. The Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). Here, the Veteran reported that he cannot shake hands due to pain in his wrist and elbows, that his shoulders pop with repetitive movement, and that he has restricted flexibility in his arms. See VA 21-4138 Statement In Support of Claim (February 2010). The Veteran also reported that his arms, legs, and hips pop with movement; he has restricted movement in his arms, back, and hips, and; he has hip, upper extremity, and lower extremity pain that makes it difficult to do simple tasks. See VA 21-4138 Statement In Support of Claim (August 2010). The Veteran further reported that his claimed disabilities cause lack of mobility. See Form 9 (February 2014). The Board acknowledges that the Veteran is competent to report symptoms of pain and numbness as these are matters within his personal knowledge, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1995). The Board further finds that the Veteran’s reports of pain and numbness are credible as he has consistently reported such symptoms approximate to his periods of service in the Air Force Reserves, and his reports of impairment are credible based on his reported symptoms of pain and numbness. As the current VA examinations and medical opinions fail to address whether the Veteran has disabilities manifested by pain and functional limitation, see Saunders, supra, adequate opinions regarding the claimed disabilities must be obtained on remand. Barr, supra. Second, the Board acknowledges the Veteran’s assertion that his claimed disabilities are due to the circumstances of his service, which he reported involved repetitive motions associated with flying and small arms training, and recurrent exposure to high gravitational forces (G-forces) while flying F-16 aircraft. See VA 21-526 Veterans Application for Compensation or Pension (January 2010); see also Form 9 (February 2014). Additionally, the Veteran has asserted that his back and neck tightness lead to headaches and body pains. See VA 21-4138 Statement In Support of Claim (February 2010). VA medical opinions that were obtained on remand in May and October 2020 are inadequate as the clinicians’ rationale relied on the absence of in-service diagnoses of the claimed disabilities to support the clinicians’ negative opinions. For example, one clinician reasoned that the Veteran’s service treatment records (STRs) “are benign for any muscle, joint or nerve disorder as a direct and sole result of their pilot experiences and training.” See C&P Exam (May 2020). In October 2020, regarding back, neck, headache, and bilateral shoulder disabilities, a clinician reasoned that there were no early symptoms at the time of exposure that would suggest a possible link to the Veteran’s exposure to G-Forces; and regarding a right wrist disability, the clinician reasoned that the evidence shows no early findings of degeneration. However, the Board notes that an in-service diagnosis is not required to establish service connection. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Thus, the opinions are inadequate. Third, the Board notes that the evidence does not show that the Veteran’s periods of ACDUTRA and INACDUTRA have been delineated clearly. Generally, active military service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d). It follows that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1131. On remand, the AOJ should make reasonable efforts to identify the Veteran’s periods of ACDUTRA and INACDUTRA. Overall, to ensure that VA has met its duty to assist, remand is required. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Make reasonable efforts to identify the Veteran’s periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), and memorialize any such findings. 2. Thereafter, provide an examination or obtain a medical opinion to address the following claimed disabilities: 1) back disability; 2) neck disability; 3) headache disability; 4) bilateral shoulder disability; 5) bilateral wrist disability; 6) bilateral elbow disability; 7) bilateral hip disability; 8) bilateral upper extremity numbness; 9) bilateral lower extremity numbness; 10) bilateral upper extremity arthritis; and 11) bilateral lower extremity arthritis. The reporting clinician is asked to review the pertinent evidence, including the Veteran’s lay assertions regarding his symptomatology, and the results of the prior examinations. For each claimed disability noted above, please do the following: (a) State whether the Veteran has a current diagnosis and, if not, state whether the Veteran otherwise experiences functional impairment. (b) For each disability or functional impairment identified in part (a), provide an opinion as to whether it is at least as likely as not that it had its onset during the Veteran’s service (including a period of ACDUTRA or INACDUTRA) or is otherwise related to the circumstances of the Veteran’s service, to include his reported exposure to G-Forces. (c) For each disability or functional impairment identified in part (a), provide an opinion as to whether it is at least as likely as not that it manifested within one year after the Veteran’s discharge from service. (d) For each disability or functional impairment identified in part (a), provide an opinion as to whether the condition was noted during service and the Veteran’s symptomatology continued since service. 3. Additionally, the clinician is also asked to address the following questions: (a.) If a neck disability or functional impairment of the neck is identified, provide an opinion as to whether it is at least as likely as not that the Veteran’s neck condition was caused OR aggravated by the Veteran’s claimed back disability (or another disability). (b.) If a headache disability or functional impairment is identified, provide an opinion as to whether it is at least as likely as not that the Veteran’s headache condition was caused OR aggravated by the Veteran’s claimed back and/or neck disabilities (or another disability). (c.) If a bilateral shoulder disability or functional impairment of the shoulders is identified, provide an opinion as to whether it is at least as likely as not that the Veteran’s bilateral shoulder condition was caused OR aggravated by the Veteran’s claimed back and/or neck disabilities (or another disability). (d.) If a bilateral wrist disability or functional impairment of the wrists is identified, provide an opinion as to whether it is at least as likely as not that the Veteran’s bilateral wrist condition was caused OR aggravated by any of the Veteran’s claimed disabilities (or another disability). (e.) If a bilateral elbow disability or functional impairment of the elbows is identified, provide an opinion as to whether it is at least as likely as not that the Veteran’s bilateral elbow condition was caused OR aggravated by any of the Veteran’s claimed disabilities (or another disability). (f.) If a bilateral hip disability or functional impairment of the hips is identified, provide an opinion as to whether it is at least as likely as not that the Veteran’s bilateral hip condition was caused OR aggravated by the Veteran’s claimed back disability (or another disability). (g.) If a bilateral upper extremity disability or functional impairment of the bilateral upper extremities is identified, provide an opinion as to whether it is at least as likely as not that the Veteran’s bilateral upper extremity disability was caused OR aggravated by any of the Veteran’s claimed disabilities (or another disability). (h.) If a bilateral lower extremity disability or functional impairment of the bilateral lower extremities is identified, provide an opinion as to whether it is at least as likely as not that the Veteran’s bilateral lower extremity disability was caused OR aggravated by any of the Veteran’s claimed disabilities (or another disability). In this context, “aggravation” means the condition worsened beyond its natural progression. 4. In formulating the opinions requested above, the clinician should consider the Veteran’s description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Additionally, if an opinion cannot be expressed without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). M.C. WILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thaddaeus J. Cox, 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.