Citation Nr: 21023038 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 11-13 606 DATE: April 20, 2021 REMANDED The issue of service connection for a cervical spine disability, claimed as secondary to the service-connected right knee disability is remanded. The issue of service connection for a low back disability, claimed as secondary to the service-connected right knee disability is remanded. The issue of service connection for a left elbow disability, claimed as secondary to the service-connected right knee disability is remanded. The issue of service connection for occipital headaches, claimed as secondary to the service-connected right knee disability is remanded. The issue of an extraschedular rating for a right knee disability is remanded. The issue of a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the Michigan Army National Guard from May 1996 to February 1998, with a period of active service from January 1997 to April 1997. These matters came before the Board of Veterans’ Appeals (Board) on appeal from June and October 2010 rating decisions issued by the Regional Office (RO). In March 2018, the Board remanded the claims for further development of the record. The Board must again remand the claim. 1. The issue of service connection for a cervical spine disability, claimed as secondary to the service-connected right knee disability is remanded. 2. The issue of service connection for a low back disability, claimed as secondary to the service-connected right knee disability is remanded. 3. The issue of service connection for a left elbow disability, claimed as secondary to the service-connected right knee disability is remanded. 4. The issue of service connection for occipital headaches, claimed as secondary to the service-connected right knee disability is remanded. Remand is required to ensure compliance with the March 2018 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). 5. The issue of an extraschedular rating for a right knee disability is remanded. Remand is required to issue a Supplemental Statement of the Case (SSOC) after receipt of additional pertinent evidence. 6. The issue of a TDIU is remanded. Remand is required to address these other issues prior to consideration of the claim for a TDIU. See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran contends that his low back, neck, left elbow, and headache disabilities onset secondary to his service-connected right knee disabilities. Specifically, he asserts that he sustained multiple falls, including a particularly bad fall in 2009, as a result of instability in his service-connected right knee that led to the onset of his low back, neck, left elbow, and headache disabilities. In the March 2018 remand, the Board instructed the RO to schedule the Veteran for VA examination to determine the cause of the Veteran’s claimed low back, neck, left elbow, and headache disabilities. The Board requested that the examiner specifically consider and discuss the Veteran’s statements regarding the onset of back, neck and elbow pain and headaches from a fall in 2009 after his right knee gave out. The Board advised that the Veteran was competent to report his symptoms/history and that such reports must be considered in formulating any opinion. IF THE VETERAN’S REPORTS WERE DISCOUNTED OR FOUND NOT MEDICALLY CREDIBLE, THE EXAMINER WAS REQUESTED THAT HE/SHE SHOULD PROVIDE AN EXPLANATION FOR THE FINDING. In the June 2019 Reports of VA examination, the physician opined that the Veteran’s claimed low back, neck, left elbow, and headache disabilities were less likely as not proximately due to or the result of the service-connected right knee disability. The physician explained that there was no medical nexus establishing causality between current complaints and military service. No residual or chronic disability subject to service connection was shown by service medical records or demonstrated by evidence following service. The examiner explained that the Veteran was not medially discharged from the military and the service medical records were evidence that he was medically qualified to complete his active tour. The examiner concluded that the Veteran had been out of service for 21 years and had worked as a welder for 10 years. The examiner noted that full consideration of all pertinent and available medical facts was rendered. In the November 2020 examination addendum medical opinion, the physician noted that the conflicting medical evidence had been reviewed and opined that the Veteran’s back, neck, left elbow and headaches were less likely as not secondary to or aggravated by his service-connected right knee disability. The physician explained that there was no medical nexus established and no residual or chronic disability subject to the service-connected right knee disability was shown by the service medical records or demonstrated by evidence following service. The physician reiterated that full consideration of all pertinent and available medical facts was rendered. RECENT DECISIONS BY THE COURTS MANDATE THAT WHEN VA PROVIDES MEDICAL EXAMINATIONS FOR CLAIMANTS SEEKING COMPENSATION BENEFITS FOR DISABILITIES, EXAMINER MUST CONSIDER AND ADDRESS WHETHER THE CLAIMANT’S ACCOUNT HAS A FACTUAL BASIS FROM A MEDICAL BASIS. The June 2019 examination etiology opinions and November 2020 addendum medical opinion are insufficient for determining whether service connection may be granted because the physician did not specifically consider and discuss the Veteran’s statements regarding the onset of back, neck and elbow pain and headaches from a fall in 2009 after his right knee gave out as directed by the Board in the March 2018 remand. In addition, the physician did not acknowledge and consider the Veteran’s reported history in formulating the opinions and did not provide any reasons for discounting the Veteran’s report of onset of symptoms as directed by the Board. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). With respect to the claim for an extraschedular rating for a right knee disability, in the March 2018 remand, the Board instructed the RO to refer the claim to the Director of Compensation Service for a determination of whether assignment of an extraschedular rating was warranted. The Director of Compensation Service provided an advisory opinion in April 2020. However, the RO did not readjudicate the claim after receipt of this additional pertinent evidence. 38 C.F.R. §§ 19.31, 19.37, 20.1304(c). The remand directives follow. 2. Obtain an addendum opinion from the physician who conducted the June 2019 examinations (and offered the November 2020 addendum opinion) or other qualified clinician, to determine WHETHER THE CLAIMED LOW BACK, NECK, LEFT ELBOW AND HEADACHE DISORDERS WERE CAUSED BY MILITARY SERVICE. The electronic claims file must be made available to the physician for review. The physician (or other qualified clinician) MUST CONSIDER the Veteran’s documented medical history and assertions. The Veteran asserts that he sustained multiple falls, including a particularly bad fall in 2009, as a result of instability in his service-connected right knee that led to the onset of his low back, neck, left elbow and headache disabilities. After reviewing the entire record, the physician (or other qualified clinician) should provide opinion with supporting explanations as to the following: (A) Does the Veteran have current low back, neck, left elbow, and headache disabilities that were CAUSED by the service-connected right knee disability? (B) Does the Veteran have current low back, neck, left elbow, and headache disabilities that were AGGRAVATED by (worsening) the service-connected right knee disability? If aggravation of any low back, neck, left elbow and headache disabilities by service-connected right knee disability is shown, the examiner should objectively quantify, to the extent possible, the degree of aggravation beyond the level of impairment had no aggravation occurred. 3. The examiner must review the record in conjunction with rendering the requested opinions and MUST SPECIFICALLY CONSIDER AND DISCUSS THE VETERAN’S STATEMENTS REGARDING THE ONSET OF BACK, NECK AND ELBOW PAIN AND HEADACHES FROM A FALL IN 2009 AFTER HIS RIGHT KNEE GAVE OUT. THE EXAMINER IS ADVISED THAT THE VETERAN IS COMPETENT TO REPORT THE SYMPTOMS AND HISTORY ASSOCIATED WITH THE ONSET OF HIS CLAIMED LOW BACK, NECK, LEFT ELBOW AND HEADACHES DISABILITIES AND THE VETERAN’S REPORTED HISTORY MUST BE ACKNOWLEDGED AND CONSIDERED IN FORMULATING ANY OPINION. IF THE VETERAN’S REPORTED MEDICAL HISTORY IS DISCOUNTED, THE EXAMINER SHOULD EXPLAIN THE REASON FOR DISCOUNTING THE VETERAN’S REPORT (i.e., Given the medical evidence in this case, your experience and knowledge and the state of medical science, is the Veteran’s account of the development of his low back, neck, left elbow and headache disabilities consistent with the clinical findings? Please fully explain your opinion.). The examiner’s attention is drawn to the following: *March 2010 VA physical therapy consult record documents the Veteran’s report that he fell and injured his upper and mid back when his knee gave out last year (2009). *The September 2010 Reports of VA examination reflects the Veteran’s complaint that his service-connected right knee frequently gives out. Documented diagnoses included normal left elbow, occipital headache, right paracentral dis protrusion at L5-S1 without significant central canal or neural foraminal narrowing and minimal disc bulges involving the mid cervical spine without significant central canal or foraminal narrowing. On examination, the examiner opined that the headaches, low back, neck and claimed left elbow disabilities were not caused by or a result of the service-connected right knee disability. The examiner explained that the Veteran received treatment for his right knee disability during service but had no further documentation of right knee problems until approximately 2008 or 2009, over 10 years since he initially received treatment for a right knee disability. The examiner noted that the Veteran was a welder and pipefitter and stood on his feet much of the day, causing extra burden on the spine which could lead to the spine problems. The examiner noted that the headaches could be a result of the cervical spine disease. *The June 2019 Reports of VA examination document the physician’s opinion that the Veteran’s claimed low back, neck, left elbow and headache disabilities were less likely as not proximately due to or the result of the service-connected right knee disability. The physician explained that there was no medical nexus establishing causality between current complaints and military service. No residual or chronic disability subject to service connection was shown by service medical records or demonstrated by evidence following service. The examiner explained that the Veteran was not medially discharged from the military and the service medical records were evidence that he was medically qualified to complete his active tour. The examiner concluded that the Veteran had been out of service for 21 years and had worked as a welder for 10 years. The examiner noted that full consideration of all pertinent and available medical facts was rendered. The November 2020 examination addendum medical opinion documents the physician’s opinion that the Veteran’s back, neck, left elbow, and headaches were less likely as not secondary to or aggravated by his service-connected right knee disability. The physician explained that there was no medical nexus established and no residual or chronic disability subject to the service-connected right knee disability was shown by the service medical records or demonstrated by evidence following service. The physician reiterated that full consideration of all pertinent and available medical facts was rendered. A thorough explanation must be provided for the opinion rendered. To reiterate, the physician (or other qualified clinician) MUST SPECIFICALLY CONSIDER AND DISCUSS THE VETERAN’S STATEMENTS REGARDING THE ONSET OF BACK, NECK AND ELBOW PAIN AND HEADACHES FROM A FALL IN 2009 AFTER HIS RIGHT KNEE GAVE OUT. THE VETERAN IS COMPETENT TO REPORT THE CIRCUMSTANCES SURROUNDING THE ONSET OF HIS CLAIMED LOW BACK, NECK, LEFT ELBOW AND HEADACHES DISABILITIES AND HIS REPORTED HISTORY MUST BE ACKNOWLEDGED AND CONSIDERED IN FORMULATING ANY OPINION. IF THE VETERAN’S REPORTED MEDICAL HISTORY IS DISCOUNTED, THE EXAMINER SHOULD EXPLAIN THE REASON FOR DISCOUNTING THE VETERAN’S REPORT (i.e., Given the medical evidence in this case, your experience and knowledge and the state of medical science, is the Veteran’s account of the development of his low back, neck, left elbow and headache disabilities consistent with the clinical findings?). If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 4. After undertaking this requested development and any additional development that may be warranted, readjudicate the issues of entitlement to service connection for a low back disability, neck disability, left elbow disability, headaches, extraschedular rating for the service-connected right knee disability and entitlement to a TDIU. The Veteran should be furnished with a SSOC and afforded a reasonable opportunity to respond to the SSOC before the record is returned to the Board for further review. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.