Citation Nr: 21024989 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-10 653 DATE: April 27, 2021 REMANDED Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1978 to April 1988 and from February 1991 to March 1991. These matters were previously remanded by the Board of Veterans’ Appeals (Board) in June 2020. The Board’s June 2020 remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran’s appeal has been returned to the Board for further appellate consideration.  Entitlement to service connection for a left elbow disability is remanded. Although the Board regrets the additional delay, the Board finds that remand is once again warranted. In particular, remand is required to obtain a medical opinion that complies with the June 2020 Board remand instructions, specifically provide an etiological opinion for the Veteran’s left elbow epicondylitis diagnosis. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (requiring substantial compliance with remand directives). The Board previously remanded this matter in June 2020 for further development including a VA examination. Regarding the VA examination, the examiner was directed to opine whether the Veteran’s left elbow epicondylitis first manifested in service or within one year of discharge thereof or is otherwise medically related to service, to include an in-service motor vehicle accident. Despite this directive, the August 2020 examiner repeatedly provided an etiological opinion for the Veteran’s left elbow strain and failed to provide an opinion for the Veteran’s left elbow epicondylitis diagnosis. See August 2020 VA examination. In addition, the June 2020 Board remand directed the examiner to consider the Veteran’s hearing testimony and lay statements that during a November 1985 motor vehicle accident, the left side of the vehicle was hit and contributed to his left elbow condition. Despite this directive, the August 2020 examiner repeatedly noted that he was unable to find locate the accident in service treatment records. See August 2020 VA examination; see February 2014 STR #1 p. 33 (Nov. 13, 1985 STR noting “Pt. in MVA causing laceration” and documenting left knee laceration). For the foregoing reasons, remand is required to obtain a medical opinion that complies with the prior remand instructions. See Stegall, supra; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Entitlement to service connection for a cervical spine disability is remanded. The Board previously remanded this matter in June 2020 for further development including a VA examination. Regarding the VA examination, the examiner was directed to opine whether the Veteran’s cervical spine disability first manifested in service or within one year of discharge or was otherwise medically related to service to include a showing of “loss of lordotic curve” of the cervical spine in 1979, or an in-service motor vehicle accident resulting in traumatic brain injury. See June 2020 Board Decision. Following the Board remand, the Veteran was afforded a VA examination in October 2020. The examiner concluded that the Veteran’s cervical spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no documentation of a neck injury in March 1985 or neck pain after the accident in November 1985. Additionally, the examiner found the straightening of the lordotic curve was probably due to muscle spasm. See October 2020 VA examination. The examiner found that there was no further documentation to support the Veteran’s claim of cervical spine disability. However, the examiner failed to consider the Veteran’s lay statements regarding his neck pain following physical therapy and two motor vehicle accidents. The Veteran reported that both accidents were of sufficient magnitude to cause a whiplash injury. See April 2018 Hearing Transcript. Moreover, the Veteran consistently reported constant neck pain which onset in 1978 from physical therapy and was aggravated by two motor vehicle accidents. See July 2018 Statement in Support of Claim, February 2019 VA examination, November 2019 VA examination, August 2020 VA examination. The examiner implied that the presence of neck pain could not have existed without documentation. In so concluding, the examiner implicitly rejected the Veteran’s statement that he has continuously had a neck disability because the report of symptoms was not supported by contemporaneous medical evidence. Especially given no reason to reject the credibility of the lay statements, the Board finds the rejection of lay symptomatology to be in error. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (“The Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms.”). In sum, the Board finds that an additional examination is necessary in order to fully consider the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate examiner to ascertain the nature and etiology of the Veteran’s left elbow epicondylitis diagnosis. The Veteran should be contacted if the examiner deems it necessary for a fully-informed opinion. Any indicated evaluations, studies, and tests deemed necessary should be accomplished.  The examiner should offer comments, an opinion and a supporting rationale for the following: (a.) Is it at least as likely as not (50 percent probability or greater) that left elbow epicondylitis first manifest in service or within one year of discharge thereof or is otherwise medically related to service to include an in-service motor vehicle accident? In rendering such opinion, the examiner should note the Veteran has previously been diagnosed with left medial epicondylitis. See December 2019 VA examination p. 14. Additionally, the examiner must specifically address the Veteran’s hearing testimony and July 24, 2018 lay statement regarding his elbow condition, as well as service treatment records documenting treatment following motor vehicle accidents. See April 2018 Hearing Transcript p. 9 (testifying that during the November 1985 motor vehicle accident the left side of the vehicle was hit, contributing to his left elbow condition); July 24, 2018 lay statement (asserting that his elbow condition was caused by in-service accidents and aggravated by completing required pull-ups during service); February 28, 2014 STR #1 pp. 33, 35. 2. Schedule the Veteran for a new examination to ascertain the nature and etiology of the Veteran’s cervical spine disability. Any indicated evaluations, studies, and tests deemed necessary should be accomplished. (Continued on the next page)   (a.) Is it at least as likely as not (50 percent probability or greater) that cervical spine degenerative disease first manifest in service or within one year of discharge thereof, or is otherwise medically related to service to include a showing of “loss of the lordotic curve” of the cervical spine in 1979, or an in-service motor vehicle accident resulting in his service-connected traumatic brain injury? In rendering such opinion, the examiner must specifically address a February 1979 service treatment record documenting “loss of the lordotic curve” of the cervical spine, the Veteran’s hearing testimony and July 24, 2018 lay statement regarding his elbow condition, as well as service treatment records documenting treatment following motor vehicle accidents. See February 28, 2014 STR p. 67; April 2018 Hearing Transcript p. 12 (testifying that both in-service motor vehicle accidents were of sufficient magnitude to cause a whiplash injury); July 24, 2018 lay statement (asserting that a physician directed him to twist awkwardly during sit ups to avoid back pain and that the sit ups aggravated his neck condition); February 28, 2014 STR #1 pp. 33, 35. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Emily A. Kotroco 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.