Citation Nr: 21040417 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 18-14 308 DATE: July 3, 2021 REMANDED Entitlement to service connection for right wrist disability is remanded. Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for dry skin of scalp and face is remanded. Entitlement to service connection for neck disability, including as secondary to temporomandibular joint disorder/dysfunction (TMJ) is remanded. REASONS FOR REMAND The Veteran served on active duty with the Air Force from November 2008 to February 2013. He also has service with the Washington Air National Guard from February 2013 to January 2014 and currently with the California Air National Guard beginning January 2014. The Veteran has periods of active duty with the California Air National Guard from November 2014 to May 2016. In June 2019, the Board, in pertinent part, denied entitlement to service connection for a right wrist disability, bilateral knee disability, and dry skin of the scalp and face. Entitlement to service connection for insomnia and entitlement to an initial rating more than 10 percent for a low back disability were also denied and entitlement to service connection for neck condition, including as secondary to TMJ was remanded. A December 2020 Memorandum Decision from the Court of Appeals for Veterans Claims (Court) order vacated the Board's decision with respect to entitlement to service connection for a right wrist disability, bilateral knee disability, and dry skin of scalp and face. The Court also affirmed the Board's denial of entitlement to service connection for insomnia and entitlement to an initial rating more than 10 percent for a low back disability. During development, several other issues were granted, but entitlement to service connection for a neck disability was denied and has been merged into the current appeal. The remaining issues, as they have been characterized above, have since been returned to the Board for further consideration. 1. Entitlement to service connection for right wrist disability is remanded. 2. Entitlement to service connection for right knee disability is remanded. 3. Entitlement to service connection for left knee disability is remanded. 4. Entitlement to service connection for dry skin of scalp and face is remanded. As discussed above, in May 2020, the Court issued a JMPR vacating and remanding the issues of entitlement to service connection for these conditions for additional action. Specifically, the Court found that the Board failed to fully satisfy the duty to assist. In this regard, the Court noted that the Board denied the Veteran's claim for a right wrist disability and bilateral knee disability without providing VA examinations for the claimed conditions. The Court emphasized that the Veteran stated that he cannot bend his wrist properly and hurt his knees during ruck marches during service, but VA never provided wrist and knee examinations. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Court then noted that the Board relied on an inadequate March 2017 VA skin condition examination because the examiner did not consider the entirety of the Veteran's medical history and did not describe the Veteran's disability in sufficient detail. It was also indicated that the Veteran suffered a dry skin condition, xerosis cutis, on his face during service. As such, pursuant to the February 2020 Court Order, the appeal with respect to these issues is remanded in order to provide the Veteran with VA examinations and corresponding etiological opinions correcting the inadequacies described in the JMPR. 5. Entitlement to service connection for neck disability, including as secondary to temporomandibular joint disorder/dysfunction (TMJ) A review of the record reveals that a remand of this issue is necessary to ensure substantial compliance with the Board's previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the June 2019 remand, the Veteran received another VA neck examination in October 2019. The examiner provided the following remarks: Dr. S[]'s medical notes reviewed. "I am not aware that [Veteran] was injured during active military service." In light of above statement, unable to presume veteran's neck condition and TMJ are service related beyond natural progression. Veteran's cervical goniometer exam is significant for moderately restricted right lateral flexion of cervical spine and severely restricted left lateral flexion of cervical spine. If the C2 and C3 discs are herniated and the nerve roots adjacent to these discs are impacted, the jaws and head or the facial parts will experience sharp pain. Cervical x-ray of 10/09/2019 significant for straightening of lordotic curve secondary to neck spams ... Veteran's current neck condition is less likely than not proximately due to his service connected TMJ disorder. Veteran's neck condition is less likely than not aggravated beyond its natural progression by his service connected TMJ. Jaw or dental x-ray needed for further evaluation of his condition. [Citation omitted]. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2019). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Importantly, correspondence from the Veteran's representative received in the Fall of 2020 repeatedly challenges the adequacy of the October 2019 examination and opinion. It is also argued that the examiner should have obtained x-rays or other dental records instead of mentioning that they were needed in order to provide further evaluation of the condition. Considering the above, the Board finds the October 2019 opinion inadequate for rating purposes because it does not properly consider the theory of secondary service connection and no opinion as to direct service connection was required. On remand, another opinion (or examination, if x-rays and dental records are unavailable) should be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations with an examiner(s) of appropriate expertise in order to determine the nature and etiology of the Veteran's claimed right wrist disability, bilateral knee disability, and dry skin of scalp and face. The examiner(s) is to be provided access to the Veteran's electronic claims file. The examiner(s) is requested to review all pertinent records associated with the claims file, the Veteran's service treatment records, post-service medical records, and lay statements of record. Any indicated diagnostic tests and studies should also be accomplished. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The VA examiner must opine whether it is at least as likely as not (50 percent or higher degree of probability), that the Veteran's claimed right wrist disability, bilateral knee disability, and dry skin of scalp and face manifested in-service or is otherwise causally or etiologically related to his military service. All diagnoses should be clearly set out. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. Any prior reports should be reconciled, as necessary. 2. Also, obtain an addendum opinion from the October 2019 VA examiner (or a similarly situated examiner) to determine the nature and etiology of the Veteran's claimed cervical neck disability, to include as secondary to service-connected TMJ. The electronic claims files and all pertinent records must be made available to the examiner and the examiner must indicate in the examination report that these records have been reviewed. All x-rays and/or dental records should be reviewed. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (a) The VA examiner must opine whether it is at least as likely as not (50 percent or higher degree of probability) that a neck disability manifested in service or is otherwise causally or etiologically related to the Veteran's military service. (b) If not directly related to service, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or higher degree of probability) that any identified neck disability is caused by his service-connected TMJ. (c) That examiner should then opine whether the neck disability is aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his service-connected TMJ. In offering any opinion, the examiner must consider the full record, to include the lay statements in support of the Veteran's claim. The examiner should also reconcile any prior report, if necessary. The rationale for any opinions offered should be provided. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, then the Veteran should be scheduled for such an examination. 3. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.