Citation Nr: 21025250 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-21 432 DATE: April 27, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 15, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1981 to June 1984. These matters come before the Board of Veterans Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2018 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. In October 2018, the Board also remanded the issue of service connection for a neck disability. In an August 2020 rating decision, the RO granted service connection for a neck disability, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, this matter is no longer in appellate status. 1. Entitlement to service connection for a back disability is remanded. Pursuant to the October 2018 Board remand, the Veteran received a VA examination for his back disability in November 2019. The examiner provided a negative opinion. However, the examiner based her rationale on the absence of treatment records until after the Veteran’s July 2011 injury. The Veteran contends his symptoms began with the motor vehicle accident injuries he sustained in service in February 1984 and have continued ever since. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016). See also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). Accordingly, remand is warranted. 2. Entitlement to service connection for a left wrist disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. Pursuant to the October 2018 Board remand, the Veteran received a VA examination for his left wrist and left knee in November 2019. The Board remand directed the examiner to comment on the Veteran’s July 2011 fall. The examiner failed to do so. The Board sincerely regrets the additional delay occasioned by multiple remands. However, the Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. The Board notes that subsequent to the November 2019 VA examinations, the Veteran became service connected for a neck disability. As such on remand the VA examiner should opine whether the Veteran’s low back, left knee and/or left wrist disability are secondary to his service-connected neck disability 4. Entitlement to TDIU prior to March 15, 2017 is remanded. The issue of entitlement to TDIU must also be remanded as it is inextricably intertwined with the issue of service connection for back, left wrist, and left knee disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). Therefore, the Board finds it necessary to remand this issue. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the nature and etiology of the Veteran’s back, left wrist, and left knee disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran—if deemed necessary by the examiner—and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: Whether it is at least as likely as not (a 50 percent probability or greater) that his back, left wrist, and left knee disabilities were incurred in, aggravated by, or etiologically related to his military service, to include his February 1984 motor vehicle accident. The examiner should comment on the July 2011 fall that occurred after the Veteran’s military service. If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back, left knee and/or left wrist disability is proximately due to or the result of his service-connected disabilities, specifically to include his service-connected neck disability. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the low back, left knee and/or left wrist disability is shown to be “predominantly” due to or result of his neck disability, but rather, whether there is any contributing degree of etiological relationship to the neck disability. If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back, left knee and/or left wrist disability is aggravated beyond natural progression by his service-connected disabilities, specifically to include his service-connected neck disability. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the low back, left knee and/or left wrist disability is shown to be aggravated beyond natural progression “predominantly” by the neck disability, but rather, whether there is any contributing degree of aggravation beyond natural progression by the service-connected neck disability. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record, including the issue of entitlement to a TDIU. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, 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.