Citation Nr: 21023746 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-27 836 DATE: April 21, 2021 REMANDED Entitlement to service connection for residuals of a cold weather injury to the upper extremities is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1960 to September 1964. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2020, at which time it was remanded for additional development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Service connection for residuals of a cold weather injury to upper extremities A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In January 2020, the Board found that a remand was necessary to accord the Veteran a VA examination. The Board noted that the Veteran had not yet been accorded an examination, and the private medical evidence of record was not sufficient as the opinions provided were speculative and as necessary testing had not been done to assess his nerve functioning. As such, the Board directed the RO to obtain any outstanding VA and private treatment records and to accord the Veteran a VA examination to address whether he had a currently diagnosed disability consistent with residuals of a cold weather injury to his upper extremities and to address the nature and etiology of any diagnosed conditions. The Board noted that any testing deemed necessary (to include electromyography (EMG) and/or nerve conduction velocity (NCV) testing) should be conducted as part of the examination and that, if this testing was deemed unnecessary, the examiner should explain why. Additional private and VA treatment records were associated with the claims file in February, July, and August 2020. As such, the Board finds substantial compliance with this portion of the prior remand directives. Stegall, 11 Vet. App. at 271. In March 2020, multiple VA examinations, including evaluations of cold weather injury residuals, hand and finger, elbow and forearm, shoulder and arm, peripheral nerves conditions, and artery and vein conditions, were conducted. The March 2020 hand and finger examination included a diagnosis of arthritis in multiple joints of both hands. Degenerative arthritis of the right elbow was noted on the elbow and forearm examination, and the examiner found no objective or diagnostic evidence of a left elbow condition. See March 2020 Elbow and Forearm Conditions VA Examination. Degenerative arthritis was found in the bilateral shoulders. See March 2020 Shoulder and Arm Conditions VA Examination. The March 2020 cold injury residuals examination indicated no diagnosis of the Veteran’s upper extremities, and the examiner does not appear to have solicited any information from the Veteran regarding his symptoms and history, as the medical history section only discussed the Veteran’s lower extremities. Similarly, the peripheral nerves examination found no diagnosis relevant to the Veteran’s upper extremities and did not solicit any information regarding the history or symptoms to the upper extremities. Also, the March 2020 peripheral nerves examination did not include any of the nerve testing requested by the Board in the January 2020 remand, as the examiner noted EMG testing was not done and did not indicate why this was so. Finally, the March 2020 artery and vein conditions examination found no diagnosis of Raynaud’s syndrome, which had previously been indicated in a December 2014 private medical opinion. In addressing the etiology of the Veteran’s diagnosed arthritic conditions, the examiner opined it was less likely than not that these conditions were related to the Veteran’s service or were caused by his reported cold weather exposure. The examiner indicated that the Veteran had no objective evidence on examination to support a diagnosis of upper extremity peripheral neuropathy or Raynaud’s syndrome. The examiner opined that the Veteran’s arthritic conditions, which are present in multiple joints, are more likely age-related and noted that the Veteran’s service records did not document any complaints of, or treatment for, a cold related injury. The examiner did not explain why EMG or other nerve conduction studies were not conducted and did not explain why it appeared that no information was solicited from the Veteran regarding the symptoms and history of his upper extremities condition. The Board, thus, finds that the development conducted after the January 2020 remand is inadequate and incomplete and that, as such, there has not been substantial compliance with the prior remand directives. Stegall, 11 Vet. App. at 271. The cold injury residuals, peripheral neuropathy, and artery and vein conditions examinations reports did not contain any information related to the Veteran’s upper extremities. It is not clear whether the examiner solicited any information from the Veteran about his upper extremities, including about his history and symptoms of a disability to his upper extremities. Elsewhere in the claims file, the Veteran has consistently reported feelings of numbness, coldness, and loss of grip strength to his upper extremities and has provided additional information regarding his symptoms and history. There is no discussion of this anywhere in the multiple examination reports obtained, and it does not appear that the examiner gave any consideration to the Veteran’s contentions or to the prior medical evidence of record and private opinions. Also, the requested nerve conduction testing was not conducted—without explanation. Given the inadequacies of the March 2020 examination reports, the Board finds that there has not been substantial compliance with the January 2020 Board remand directives and that corrective action is, thus, necessary. On remand, additional VA examinations should be obtained, as necessary, to assess the nature and etiology of any currently diagnosed disability consistent with residuals of a cold weather injury to the Veteran’s upper extremities. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently diagnosed disability resulting from a cold weather injury to his upper extremities, to include any peripheral neuropathy, Raynaud’s syndrome, or other nerve condition. The claims file should be made available to and be reviewed by the examiner and such review should be indicated in the examination report. Any testing deemed necessary should be conducted—to include EMG testing and any other appropriate nerve testing, and the results thereof should be noted in the examination report. If the examiner is unable to conduct the required nerve testing or concludes that the required testing is not necessary, he or she should explain why that is so. After a review of the claims folder, and an interview with and examination of the Veteran, the examiner is asked to: a. Identify/diagnose any disability consistent with residuals of a cold weather injury to the Veteran’s upper extremities that presently exists or that has existed during the appeal period. b. Opine as to whether it is at least as likely as not (i.e. at least a 50 percent probability or higher) that any such diagnosed disability consistent with residuals of a cold weather injury to the Veteran’s upper extremities onset during service, within one year of separation, or is otherwise related to, his service or any incident therein, to include his reported exposure to cold weather conditions during service. In providing the requested opinion, the examiner must adequately consider and address the relevant evidence of record, to include the Veteran’s service treatment records, the lay statements of record, VA treatment records, and especially the prior private medical opinions of record. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.