Citation Nr: 21032063 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-22 994 DATE: May 25, 2021 REMANDED Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a sleep disorder, to include insomnia, is remanded. Entitlement to service connection for a bilateral foot disorder is remanded. Entitlement to service connection for a bilateral eye disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for an upper back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1973 to August 1975. In June 2018, the Veteran testified at a video conference hearing before the undersigned. In November 2018, the Board denied these claims. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court issued an order granting a September 2019 Joint Motion for Partial Remand (JMPR). The JMPR outlined that the Board erred when it failed to satisfy its duty to assist by not obtaining additional VA treatment records and relying upon January 2013 VA medical opinions that were inadequate. The Board subsequently remanded these claims in April 2020. 1. Entitlement to service connection for a neck disorder is remanded. Regrettably, this claim must be remanded as the examination and opinion provided in September 2020 were not adequate. The September 2020 VA-QTC examiner diagnosed the Veteran with degenerative joint disease (DJD) and stenosis of the cervical spine and concluded that it was not related to service because this diagnosis was not documented until November 2019, decades after service. However, the examiner failed to address the Veteran's lay contentions of continuity, as arthritis is considered a chronic disease, despite the lack of contemporaneous supporting medical documentation. The mere fact that an appellant's assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). As the examiner failed to address the question of continuity of symptomatology or the Veteran's assertions that his work as a mechanic in service caused his neck disability, this claim must be remanded for an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for a right knee disorder is remanded. Regrettably, this claim must be remanded as the examination and opinion provided in September 2020 were not adequate. The September 2020 VA-QTC examiner diagnosed the Veteran with DJD of the right knee and concluded that it was not related to service because this diagnosis was not documented until March 2016, decades after service. However, the examiner did not address the Veteran's lay contentions of continuity, as arthritis is considered a chronic disease, despite the lack of contemporaneous supporting medical documentation. The mere fact that an appellant's assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan, supra. As the examiner failed to address the question of continuity of symptomatology or the Veteran's assertions that his work as a mechanic in service caused his right knee disability, this claim must be remanded for an addendum opinion. See Barr, supra. 3. Entitlement to service connection for a left knee disorder is remanded. The Veteran claims that his left knee disorder was caused or aggravated by his right knee disorder. As such, a decision on the remanded issue of service connection for a right knee disorder could significantly impact a decision on the issue of service connection for a left knee disorder. The issues are inextricably intertwined, and a remand of the left knee claim is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 4. Entitlement to service connection for a sleep disorder, to include insomnia, is remanded. The Veteran was afforded VA contract examinations for his claimed sleep disorder in September 2020 and January 2021. The examiners concluded that he did not have sleep apnea and that his insomnia was not aggravated by a service-connected disability. However, neither examiner addressed whether the Veteran's insomnia was directly caused by military service or caused by a service-connected disability. In light of these deficiencies, the sleep claim must be remanded for a new opinion. See Barr, supra. 5. Entitlement to service connection for a bilateral foot disorder is remanded. Regrettably, this claim must be remanded as the examination and opinion provided in September 2020 were not adequate. The September 2020 VA-QTC examiner diagnosed the Veteran with degenerative arthritis of the bilateral feet and concluded that it was not related to service because this diagnosis was not documented until March 2016, decades after service. However, the examiner did not address the Veteran's lay contentions of continuity, as arthritis is considered a chronic disease, despite the lack of contemporaneous supporting medical documentation. The mere fact that an appellant's assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan, supra. As the examiner failed to address the question of continuity of symptomatology or the Veteran's assertions that his work as a mechanic in service caused his bilateral foot disability, this claim must be remanded for an addendum opinion. See Barr, supra. 6. Entitlement to service connection for a bilateral eye disorder is remanded. The Veteran was afforded a VA-QTC examination and opinion for his bilateral eye claim in December 2020. The examiner diagnosed the Veteran with age-related cataracts and dry eye of the left eye and myokymia of the right eye. However, the examiner did not address the Veteran's contentions that he got substances in his eyes while working as a mechanic in service and that this caused his current eye conditions. The examiner also did not address whether fatigue, one of the listed risk factors for myokymia, could be related to the Veteran's service-connected migraine headaches, establishing a causal relationship between the right eye disability and a service-connected disability. In light of these deficiencies, the bilateral eye claim must be remanded for a new opinion. See Barr, supra. 7. Entitlement to service connection for a right shoulder disorder is remanded. Regrettably, this claim must be remanded as the examination and opinion provided in September 2020 were not adequate. The September 2020 VA-QTC examiner diagnosed the Veteran with right shoulder acromioclavicular joint osteoarthritis and concluded that it was not related to service because this diagnosis was not documented until August 2011, decades after service. However, the examiner did not address the Veteran's lay contentions of continuity, as arthritis is considered a chronic disease, despite the lack of contemporaneous supporting medical documentation. The mere fact that an appellant's assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan, supra. As the examiner did not address the question of continuity of symptomatology or the Veteran's assertions that his work as a mechanic in service caused his right shoulder disability, this claim must be remanded for an addendum opinion. See Barr, supra. 8. Entitlement to service connection for a left shoulder disorder is remanded. The Veteran claims that his left shoulder disorder was caused or aggravated by his right shoulder disorder. As such, a decision on the remanded issue of service connection for a right shoulder disorder could significantly impact a decision on the issue of service connection for a left shoulder disorder. The issues are inextricably intertwined, and a remand of the left shoulder claim is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 9. Entitlement to service connection for a low back disorder is remanded. Regrettably, this claim must be remanded as the examination and opinion provided in September 2020 were not adequate. The September 2020 VA-QTC examiner diagnosed the Veteran with DJD of the lumbar spine and concluded that it was not related to service because this diagnosis was not documented until November 2019, decades after service. However, the examiner did not address the Veteran's lay contentions of continuity, as arthritis is considered a chronic disease, despite the lack of contemporaneous supporting medical documentation. The mere fact that an appellant's assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan, supra. As the examiner did not address the question of continuity of symptomatology or the Veteran's assertions that his work as a mechanic in service caused his low back disability, this claim must be remanded for an addendum opinion. See Barr, supra. 10. Entitlement to service connection for an upper back disorder is remanded. The Veteran has claimed service connection for the neck, upper back, lower back, and shoulders. Given the proximity of his upper back complaints to the remanded issues of a neck disorder, low back disorder, and bilateral shoulder disorders, a decision on the remanded issues could significantly impact a decision on the issue of service connection for an upper back disorder. The issues are inextricably intertwined, and a remand of the upper back claim is required as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Send the Veteran's claims file to appropriate examiners to provide addendum opinions regarding the nature and etiology of his claimed neck, bilateral knee, sleep, bilateral foot, bilateral eye, bilateral shoulder, low back, and upper back disorders. The Veteran may be recalled for examination if deemed necessary. Note that the Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. With regard to the neck: a) The examiner must state whether is at least as likely as not that the Veteran's current neck disability is related to an in-service injury, event, or disease. b) The examiner must address the contentions of (1) continuous neck pain since service and (2) lifting heavy engine parts in awkward positions. With regard to the bilateral knees: a) The examiner must state whether it is at least as likely as not that the Veteran's current left and/or right knee disability is related to an in-service injury, event, or disease. b) The examiner should also state whether it is at least as likely as not that the Veteran's current left knee disability was caused or aggravated by his right knee disability. c) The examiner must address the contentions of continuous right knee pain since service. With regard to the sleep disorder: a) The examiner must state whether it is at least as likely as not that the Veteran's current insomnia, or any other identified sleep disorder, is related to an in-service injury, event, or disease. b) The examiner should also state whether it is at least as likely as not that the Veteran's current insomnia was caused or aggravated by his service-connected migraine headaches. c) The examiner must address the contentions of (1) continuous insomnia since basic training, (2) migraine headaches disrupting sleep. With regard to the bilateral feet: a) The examiner must state whether is at least as likely as not that the Veteran's current bilateral foot disabilities are related to an in-service injury, event, or disease. b) The examiner must address the contentions of continuous foot pain since service. With regard to the bilateral eyes: a) The examiner must state whether is at least as likely as not that the Veteran's current bilateral eye disabilities are related to an in-service injury, event, or disease. b) The examiner should also state whether it is at least as likely as not that the Veteran's current right eye myokymia was caused or aggravated by his service-connected migraine headaches, including resulting fatigue. c) The examiner must address the contentions that the Veteran got particles in his eyes in service while working as a mechanic. With regard to the bilateral shoulders: a) The examiner must state whether it is at least as likely as not that the Veteran's current left and/or right shoulder disability is related to an in-service injury, event, or disease. b) The examiner should also state whether it is at least as likely as not that the Veteran's current left shoulder disability was caused or aggravated by his right shoulder disability. c) The examiner must address the contentions of (1) continuous right shoulder pain since service and (2) lifting heavy engine parts in awkward positions. With regard to the low back: a) The examiner must state whether is at least as likely as not that the Veteran's current low back disability is related to an in-service injury, event, or disease. b) The examiner must address the contentions of (1) continuous low back pain since service and (2) lifting heavy engine parts in awkward positions. With regard to the upper back: a) The examiner must state whether is at least as likely as not that the Veteran's current upper back disability is related to an in-service injury, event, or disease. b) The examiner must address the contentions of lifting heavy engine parts in awkward positions. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moore, 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.