Citation Nr: 21029442 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-46 316 DATE: May 13, 2021 REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a bilateral upper extremity (BUE) disorder, to include cubital tunnel syndrome, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1989 to December 1995, January 2003 to January 2005, August 2005 to December 2006, and August 2008 to November 2009, to include service in Southwest Asia. He had additional service with the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in July 2019. The Board remanded the appeal for further development in November 2019. The Board notes that in the Veteran's representative's April 2021 post-remand appellate brief, the issue of entitlement to service connection for sleep apnea was included. However, the RO recently granted service connection for obstructive sleep apnea in a December 2020 rating decision and prior to this implemented service connection for insomnia in a May 2020 rating decision. Thus, the issue of service connection for a sleep disorder has been granted in full. Unfortunately, another remand is required. Pursuant to the Board's November 2019 remand directives, addendum opinions were obtained in December 2020. Regarding a back disability, the Board asked the examiner to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran's active service. In offering this opinion, the Board instructed that the examiner must accept as true the competent and credible report of falling down a small embarkment in the motor pool while wearing full battle gear. In addressing this question, the Board instructed the examiner to please note that the absence of evidence of treatment in the Veteran's service treatment records or in the records following service separation cannot, standing alone, serve as the basis for a negative opinion. However, the examiner relied on lack of documentation of back complaints or injuries in the Veteran's STRs and provided insufficient rationale when rendering a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23(2007) (holding that a VA examination was inadequate because the examiner relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion). Thus, this opinion is inadequate. For these reasons, an addendum opinion is needed from a different examiner on remand to ensure substantial compliance with the Board's November 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). As to a BUE disorder, the Board asked the examiner to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in, or is otherwise related to, the Veteran's active service, to include the right index finger laceration in April 1991and the April 2004 report of left middle finger pain of three weeks duration. In responding to this question, the Board instructed the examiner to specifically address the effects if any, of Veteran's military occupational specialty of combat engineer, which included serving as a gunner on patrol missions. Additionally, the examiner was instructed that they must consider the lay statements of record indicating persistent ring and little finger numbness and pain since service. See July 2019 Board Hearing at 25. However, the examiner failed to consider the lay statements of record indicating persistent ring and little finger numbness and pain since service, as specifically requested by the Board. Thus, this opinion is inadequate. For these reasons, aa addendum opinion is needed from a different examiner on remand to ensure substantial compliance with the Board's November 2019 remand directives. Stegall, 11 Vet. App. 268. Any outstanding treatment records should also be secured, including any EMG studies for the Veteran's hands. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include any EMG studies. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant treatment records. 3. Then obtain an addendum opinion from a different VA examiner than the December 2020 VA examiner to determine the etiology of the Veteran's back disability. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. Following review of the claims file, the examiner should address the following: For each back disorder identified since November 2010, including but not limited to lumbar spine herniated nucleus pulposus, the examiner is asked to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran's active service. In offering this opinion, the examiner must accept as true the competent and credible report of falling down a small embarkment in the motor pool while wearing full battle gear and discuss whether a nexus between lumbar spine herniated nucleus pulposus and the Veteran's above-mentioned reports is "medically plausible" given this fall. See January 2013 Notice of Disagreement (NOD) and May 2014 lay statements. A complete rationale must be provided for all opinions expressed. Please note that the absence of evidence of treatment in the Veteran's service treatment records or in the records following service separation cannot, standing alone, serve as the basis for a negative opinion. Please state whether there is any medical reason for rejecting the Veteran's statements. 4. Then obtain an addendum opinion from a different examiner than the December 2020 examiner as to the etiology of the Veteran's BUE disorder. No additional examination is necessary unless the examiner determines otherwise. Following review of the claims file, the examiner should address the following: (a) For each BUE disorder identified since November 2010, including but not limited to bilateral cubital tunnel syndrome, the examiner is asked to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in, or is otherwise related to, the Veteran's active service, to include the right index finger laceration in April 1991and the April 2004 report of left middle finger pain of three weeks duration. In responding to this question, the examiner should specifically address the effects if any, of Veteran's military occupational specialty of combat engineer, which included serving as gunner on patrol missions. See January 2013 NOD and July 2019 Board Hearing at 21. Additionally, the examiner must consider the lay statements of record indicating persistent ring and little finger numbness and pain since service. See July 2019 Board Hearing at 25. (b) Please discuss whether a nexus between bilateral cubital tunnel syndrome and service is "medically plausible," given the Veteran's reported persistent ring and little finger numbness and pain since service. A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.