Citation Nr: 21028180 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-00 708 DATE: May 10, 2021 REMANDED Entitlement to service connection for a bilateral eye condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a lumbosacral spine condition is remanded. Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for a left ankle condition is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1958 to September 1961. This matter again comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran, his wife, and his daughter previously testified before a Veterans Law Judge (VLJ) other than the undersigned via videoconference in June 2017; a transcript is of record. The Board previously remanded this matter in March 2018 and April 2020. Unfortunately, another remand is required in this case. The Board sincerely regrets the additional delay; however, further evidentiary development is needed before the Veteran's claims for service connection can be adjudicated on the merits. 1. Bilateral Eye Condition Regarding the Veteran's claim for service connection for a bilateral eye condition, the Board notes that in its April 2020 remand, the Board requested that an examination take place after which the examiner was to opine as to the etiology of any and all eye conditions attributable to the Veteran throughout the appellate period, even those that were asymptomatic or resolved. See April 2020 Board Decision. The Board acknowledges receipt of a July 2020 opinion in which the examiner noted that the Veteran has bilateral cataracts (diagnosed in 2019) and bilateral glaucoma (diagnosed during the July 2020 examination) and concluded that these conditions were less likely than not causally linked to his active service. However, the examiner did not consider or address the Veteran's diagnosed refractive error. See October 2006 Kaiser Permanente General Eye Exam. A remand confers on claimants, as a matter of law, the right to compliance with the remand orders and on the VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As the examiner did not address all conditions attributable to the Veteran throughout the period on appeal, the Board finds that the terms of the April 2020 remand have not been substantially complied with and therefore an addendum opinion is warranted to determine the etiology of the Veteran's bilateral eye disability. 2. Left Knee Condition 3. Right Knee Condition 4. Lumbosacral Spine Condition 5. Cervical Spine Condition 6. Right Ankle Condition 7. Left Ankle Condition Concerning the Veteran's joint disabilities, the Board acknowledges receipt of various opinions submitted in July 2020, August 2020, and September 2020. However, these opinions are inadequate to ascertain the etiologies of the Veteran's current bilateral knee, bilateral ankle, lumbosacral spine, and cervical spine disorders. The July 2020 opinion, which the examiner submitted as one opinion for the above-listed joint disabilities, concluded that the Veteran's various disorders were less likely than not etiologically related to his active service but did not contain a rationale explaining this conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Furthermore, the examiner did not address the competent lay statements submitted by the Veteran and his family as they related to his first-hand experiences in service and the onset and continuity of his observable symptomatology. Accordingly, the RO returned the claims file to the examiner for a new opinion. In the August 2020 opinion, the clinician determined that the Veteran's musculoskeletal conditions were at least as likely as not related to his active duty service; however, again, no rationale was provided. Nieves-Rodriguez, 22 Vet. App. at 301. The clinician providing this opinion did not address the evidence of record and instead merely stated that the lay statements provided were "substantial evidence." See August 2020 VA Medical Opinion (labeled C&P Examination). Finally, the Board acknowledges receipt of a September 2020 opinion, in which the clinician concludes that the Veteran's bilateral ankle, bilateral knee, lumbosacral spine, and cervical spine disabilities are less likely than not attributable to his active duty service. As rationale, the clinician states that "[t]here are no treatment records for [these] conditions while Veteran was in active service." See September 2020 VA Medical Opinion (labeled C&P Examination). However, the Board has already acknowledged that the Veteran's service treatment records are unavailable as they were previously destroyed in a fire and that the Veteran had provided corroborating, competent, credible evidence of his in-service experiences. See April 2020 Board Decision. The lack of service treatment records in this matter does not render the Veteran's lay testimony not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Additionally, the examiner cannot rely on a lack of contemporaneous medical documentation in formulating an opinion. See Fountain v. McDonald, 27 Vet. App. 258, 261 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231 (2012)). Moreover, in the September 2020 opinion, the clinician concluded that the Veteran's bilateral knee, bilateral ankle, lumbosacral spine, and cervical spine conditions were less likely than not related to the Veteran's active service; however, later in the opinion, the clinician found that the Veteran's lumbosacral spine degenerative disc disease with bilateral lower extremity radiculopathy, IVDS, and degenerative joint disease, right knee strain, and left arthritis (joint unidentified) were at least as likely as not due to his active duty service. This internal inconsistency, combined with the above-listed issues, renders the opinions obtained after issuance of the April 2020 remand inadequate. Consequently, the Board finds that an addendum opinion must be obtained as to the natures and etiologies of the Veteran's numerous musculoskeletal disabilities. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of any and all bilateral eye condition(s) attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should identify any and all bilateral eye condition(s) attributable to the Veteran throughout the appellate period, including those that either have resolved or are currently asymptomatic. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition manifested during, or is the result of, his active duty service. In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including, but not limited to: (i) The Veteran's VA medical records; (ii) The Veteran's private medical records; and (iii) The Veteran's and his family's competent lay statements, including the June 2017 testimony as to the Veteran's first-hand experiences during service and the nature, onset, and continuity of his symptomatology. If the clinician determines that the Veteran's bilateral eye condition(s) is/are less likely than not due to his active service, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 2. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of any and all bilateral knee condition(s) attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should identify any and all bilateral knee condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition manifested during, or is the result of, his active duty service. In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including, but not limited to: (i) The Veteran's VA medical records; (ii) The Veteran's private medical records; and (iii) The Veteran's and his family's competent lay statements, including the June 2017 testimony as to the Veteran's first-hand experiences during service and the nature, onset, and continuity of his symptomatology. If the clinician determines that the Veteran's bilateral knee condition(s) is/are less likely than not due to his active service, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 3. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of any and all lumbosacral spine condition(s) attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should identify any and all lumbosacral spine condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition manifested during, or is the result of, his active duty service. In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including, but not limited to: (i) The Veteran's VA medical records; (ii) The Veteran's private medical records; and (iii) The Veteran's and his family's competent lay statements, including the June 2017 testimony as to the Veteran's first-hand experiences during service and the nature, onset, and continuity of his symptomatology. If the clinician determines that the Veteran's lumbosacral spine condition(s) is/are less likely than not due to his active service, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 4. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of any and all cervical spine condition(s) attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should identify any and all cervical spine condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition manifested during, or is the result of, his active duty service. In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including, but not limited to: (i) The Veteran's VA medical records; (ii) The Veteran's private medical records; and (iii) The Veteran's and his family's competent lay statements, including the June 2017 testimony as to the Veteran's first-hand experiences during service and the nature, onset, and continuity of his symptomatology. If the clinician determines that the Veteran's cervical spine condition(s) is/are less likely than not due to his active service, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 5. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of any and all bilateral ankle condition(s) attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should identify any and all bilateral ankle condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition manifested during, or is the result of, his active duty service. In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including, but not limited to: (i) The Veteran's VA medical records; (ii) The Veteran's private medical records; and (iii) The Veteran's and his family's competent lay statements, including the June 2017 testimony as to the Veteran's first-hand experiences during service and the nature, onset, and continuity of his symptomatology. If the clinician determines that the Veteran's bilateral ankle condition(s) is/are less likely than not due to his active service, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Seserman 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.