Citation Nr: 21013970 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-13 867 DATE: March 11, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right lower extremity neurological disability, claimed as radiculopathy is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a chronic headache disorder is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a bilateral eye disability is remanded. Entitlement to an initial disability rating in excess of 30 percent for right knee patellofemoral syndrome, with limitation of extension is remanded. Entitlement to a disability rating in excess of 20 percent for residuals of a medial meniscus removal, right knee, with limitation of flexion is remanded. INTRODUCTION The Veteran had active service from February 1959 to November 1962. When this case was previously before the Board in January 2019, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. The Board notes that by way of a January 2021 rating decision service connection was granted for bilateral hearing loss and tinnitus. At that time, 100 and 10 percent maximum schedular ratings and special monthly compensation (SMC) based on housebound were established throughout the entire appeal period. REASONS FOR REMAND While further delay of this appeal is quite regrettable, the Board finds additional development is yet again required before the Veteran’s remaining claims are decided. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Low Back/Radiculopathy and Left Knee Claims In the course of the January 2019 remand, the Board found the reports of medical examinations and opinions provided in March 2016 to be insufficient, because the examiner provided unfounded conclusory statements, failed to acknowledge the Veteran’s competent reports, and wholly relied upon a lack of contemporaneous medical evidence to support their conclusions. Following the January 2019 remand, the Veteran underwent additional VA back and left knee examinations in January 2021. Unfortunately, the examiner again wholly based her conclusion—that the Veteran’s lumbar spondylosis with strain, intervertebral disc syndrome, and spinal stenosis was less likely than not incurred in service—on a lack of documented symptoms and medical reports in his service treatment records (STRs). The examiner, like the prior examiner, ignored the Veteran’s reports of back pain during his military service. A lack of contemporaneous treatment in the service treatment records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, examiners simply are not free to ignore a veteran’s statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the examiner indicated she could not “confirm a current chronic diagnosis” with respect to the Veteran’s left knee; however, as previously noted the Veteran was confirmed to have left knee arthritis during his March 2016 examination. A medical opinion based on an incorrect factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). For these reasons, the Board finds new examinations and medical opinions are necessary. Finally, the Board also notes the examiner found the Veteran’s radiculopathy to be consequentially related to his lumbar spine disorders, and as such, this claim must remain in abeyance pending additional development of his lumbar spine claim. Bilateral Eye, Hypertension, GERD, and Chronic Headache Claims In the course of the January 2019 remand, the Board instructed the RO to obtain medical examinations as well as opinions addressing the Veteran’s claims for service connection for a bilateral eye disability, hypertension, GERD, and a headache disorder. Following that remand the RO merely obtained medical opinions addressing whether the Veteran’s claims were consequentially related to his exposure to contaminated drinking water at Camp Lejeune. However, the Board had also previously instructed the RO to obtain opinions as to whether the Veteran’s disabilities were incurred in service, in addition to whether his disabilities may have been consequentially related to his contaminated water exposure. In this respect, the Board notes the Veteran’s STRs show he was treated for inflammation of the eye, a head strike, and upset stomach and vomiting blood in service. Based on the foregoing, the Board finds substantial compliance with the prior remand instructions has not been achieved, and as such, a remand is again required. Right Knee Increased Rating Finally, in the course of the January 2019 remand, the Board fully explained that an assessment of the Veteran’s flare-ups—to include all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors—as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion were necessary to properly evaluate the Veteran’s right knee disability. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran recently underwent another VA examination; however, like the March 2016 examination, the January 2021 VA examiner failed to provide these critical evaluative criteria. As such, a remand is again required. Accordingly, the case is REMANDED for the following actions: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran, to address the etiology of the Veteran’s claimed lower back and left knee disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed lumbar spine or left knee disability at least as likely as not (a 50 percent probability or greater): a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected right knee disability; or c) was worsened to any degree by his service-connected right knee disability. The examiner(s) must specifically consider the Veteran’s competent lay reports as they relate to the claimed disabilities. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. 2. Also, afford the Veteran a VA examination by an examiner with sufficient expertise, who has received specialized training and guidance on providing medical opinions for disabilities based on exposure to water contamination at Camp Lejeune, to determine the diagnosis and etiology of the Veteran’s claimed bilateral eye disability, hypertension, GERD, and headache disorders. All evidence must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following an examination of the Veteran and a review of the relevant records and lay statements, the examiner should state whether any bilateral eye disability, hypertension, GERD, or headache disorder present during the period of the claims at least as likely as not (a 50 percent probability or greater) was incurred in or is otherwise etiologically related to his active duty service, to include his exposure to contaminated water at Camp Lejeune. The examiner must provide a complete rationale for any proffered opinions. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements regarding the nature of his service and present manifestations experienced. The examiner should also consider and discuss the Veteran’s treatment for inflammation of the eye, a head injury, and upset stomach and vomiting blood in service. If the examiner is unable to provide any requested opinion, he or she should explain why. 3. Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected right knee disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.