Citation Nr: 21026408 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-50 148 DATE: May 3, 2021 REMANDED Entitlement to service connection for a neck condition, to include as secondary to service-connected lower thoracic strain, is remanded. Entitlement to service connection for a right shoulder condition, to include as secondary to service-connected lower thoracic strain, is remanded. Entitlement to service connection for a left shoulder condition, to include as secondary to service-connected lower thoracic strain, is remanded. Entitlement to service connection for right arm numbness, to include as secondary to service-connected lower thoracic strain, is remanded. Entitlement to service connection for left arm numbness, to include as secondary to service-connected lower thoracic strain, is remanded. Entitlement to service connection for right hand numbness, to include as secondary to service-connected lower thoracic strain, is remanded. Entitlement to service connection for left hand numbness, to include as secondary to service-connected lower thoracic strain, is remanded. Entitlement to service connection for a right knee condition, to include as secondary to service-connected lower thoracic strain, is remanded. Entitlement to service connection for a left knee condition, to include as secondary to service-connected lower thoracic strain, is remanded. Entitlement to service connection for a headache condition, to include as secondary to service-connected lower thoracic strain, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1996 to August 1999. In January 2020, the Veteran testified at a videoconference hearing conducted before the undersigned Veterans Law Judge. A hearing transcript is of record. In April 2020, the Board of Veterans' Appeals (Board) remanded this appeal for further evidentiary development. Headaches and cervical spine, bilateral shoulder, arm, and hand conditions Pursuant to the Board's April 2020 remand, addendum opinions were obtained from a VA-contracted examiner in August 2020. The opinions provided by the examiner with respect to these disabilities, however, were not entirely responsive to the Board's remand directives, and are otherwise deficient. With respect to the cervical spine, shoulder, arm, and hand conditions, the Board specifically directed that the examiner provide an opinion as to whether it was at least as likely as not that these disabilities were related to the Veteran's in-service upper back complaints or the in-service events that led to his service-connected thoracic spine condition, and with respect to whether either disability was proximately due to, or aggravated beyond its natural progression by, the service-connected lower thoracic strain. With respect to the claimed headaches, the Board specifically directed that an opinion be provided as to whether the current headaches was at least as likely as not related to in-service headache complaints. On the question of direct service connection for each of these claimed conditions, the examiner provided opinions stating that the claimed conditions were less likely than not incurred in, or caused by, a claimed in-service injury, event, or illness. In providing these opinions, the examiner relied only on an apparent absence of evidence of diagnosis, treatment, or symptoms of either of the claimed disabilities in the Veteran's service treatment records (STRs) or medical records within one year after his separation from service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion). Notably, the examiner did not specifically address whether either of the claimed cervical spine, or bilateral shoulder, arm, or hand conditions was related to the Veteran's upper back complaints during service, or the in-service injury that led to the service-connected thoracic spine disability, as the Board directed. A remand by the Board confers on a claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the examiner relied on an inaccurate factual premise where she failed to address evidence of right arm pain from the elbow to the hand, and bilateral shoulder pain, including diagnosed right shoulder muscle strain, as noted in the Veteran's STRs. Further, the examiner did not address evidence of multiple reported headaches, or a migraine diagnosis during service, as also noted in the Veteran's STRs. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). With respect the question of secondary service connection, the examiner provided opinions stating that the claimed cervical spine, and bilateral shoulder, arm, and hand conditions were less likely than not proximately due to, or the result of, or aggravated beyond their natural progression by, the service-connected thoracic spine disability. Here, the examiner stated that one joint's disease does not spread to another or cause damage to it, and noted that the innervation of the anatomical structures of these joints was not associated with the thoracic spine. While also noting that an individual may naturally compensate by using another body component while avoiding use of a painful or limited component, the examiner did not specifically describe whether or not such compensation would have caused or aggravated either of the claimed disabilities in the Veteran's case. Given the noted deficiencies in the August 2020 VA-contracted examiner's opinions, the Board finds that remand of these claims is warranted to obtain new etiology opinions with respect to each of these claimed conditions. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Right and left knee conditions The Veteran was afforded a VA-contracted examination of his knees in September 2020, at which time the examiner diagnosed degenerative arthritis of both knees, and noted the Veteran's right knee meniscal tear. The examiner provided opinions in October 2020, indicating that it was less likely than not that the claimed right and knee disabilities were proximately due to or the result of, or aggravated by, the Veteran's service-connected thoracic spine disability. Notably, however, the examiner did not provide opinions as to the likelihood that the knee disabilities were incurred during, or otherwise the result of, the Veteran's active service. In this regard, while etiology opinions on the question of direct service connection were provided in an October 2014 VA examination report, that examiner apparently discredited the Veteran's assertion that he jumped off of tanks during service, and relied on an apparent finding that knee injuries during service had resolved. See Dalton, supra. The examiner did not address evidence of continuity of knee symptomatology since service, including evidence provided by the Veteran's mother, who noted that he continued to have knee problems since service, in a June 2014 statement. Where an adequate opinion addressing the direct etiological relationship between the Veteran's claimed knee disabilities and his active service has not yet been provided, the Board finds that remand of these claims is warranted to obtain new etiology opinions with respect to these disabilities. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon, 20 Vet. App. 79. Accordingly, these matters are hereby REMANDED for the following action: Arrange for the Veteran's claims file to be reviewed by an appropriate VA examiner to obtain new opinions as to the etiology of the Veteran's claimed headaches and cervical spine, right and left shoulder, right and left arm, right and left hand, and right and left knee disabilities. The claims file and a copy of this REMAND should be made available to the examiner for review. If the examiner determines that a new examination is warranted for any claimed disability, in order to provide the requested etiology opinion, arrange for the Veteran to be afforded such examination(s). If the Veteran is examined, any and all indicated studies and tests deemed necessary by the examiner should be accomplished. After review of the record, and completion of any examination (including any necessary tests and studies), the VA examiner should: (a.) clearly identify all headache disabilities, and all conditions of the cervical spine, and of the Veteran's shoulders, arms, hands, and knees currently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved). The examiner should specifically address diagnoses noted in the Veteran's October 2014 VA examination report and as noted by the VA-contracted examiner in the October 2020 knee examination report, as well as all additional diagnoses noted in the Veteran's VA and private clinical records. (b.) For each such identified disability/condition, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that such had its onset during service, or is otherwise medically-related to the Veteran's service, to include his documented complaints/diagnoses of headaches, and of upper back, shoulder, arm, and knee symptomatology during service; the in-service injury that resulted in the service-connected thoracic spine injury; and/or his strenuous in service duties as a tank turret mechanic. (c.) For each current headache disability, and condition of the cervical spine, shoulders, arms, and hands that is deemed to not be at least as likely as not etiologically related to the Veteran's service on a direct basis, the examiner should also provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the condition/disability was caused, or aggravated (made worse) beyond its natural progression by the Veteran's service-connected thoracic spine disability, or his claimed cervical spine disability, to include by means of overcompensating due to joint pain. In addressing the above, the examiner must consider and discuss all pertinent medical evidence, to include evidence of treatment and diagnoses of the claimed disabilities/conditions; and lay evidence of record, to include the Veteran's lay reports as to the nature and onset of his claimed conditions/disabilities, his reports of suffering a continuity of symptoms of his claimed conditions/disabilities since service, and the statement provided by his mother noting his complaints of continuing knee pain since service. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. In this regard, a discussion of the facts and medical principles involved would be of considerable assistance to the Board. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.