Citation Nr: 21042253 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-66 532 DATE: July 12, 2021 REMANDED Entitlement to service connection for a right forearm disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to October 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This issue was previously before the Board in December 2019 and March 2021, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Entitlement to service connection for a right forearm disorder is remanded. Remand is required or substantial compliance with the March 2021 Board remand directives, and for an addendum VA medical opinion. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The term "disability" as used for VA purposes contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The March 2021 Board remand directives instructed the RO to obtain and associate with the claims folder any outstanding VA treatment records. Additional VA treatment records were successfully added to the claims folder in March and May 2021. The March 2021 Board remand directive also instructed the RO to obtain a VA medical opinion that addressed whether the Veteran has a disability contemplating functional impairment resulting in loss of earning capacity, even without a diagnosis, and if so, to opine whether the disability had its onset during, or is otherwise related to service. In doing so, the examiner was also instructed to comment on the Veteran's lay statements. In March 2021, the RO obtained an addendum VA medical opinion where the examiner stated that it is at least as likely as not that the Veteran has had a disability of the forearm since May 2016. The Board notes that this is the date of the Veteran's claim. The examiner explained that they reevaluated all of the records, noted that there was service history of an acute injury in basic training with no sequelae, and conceded that this is evidence of an ongoing medical disability. However, the examiner did not provide a nexus opinion, or comment on the Veteran's lay statements. In April 2021, the RO obtained another addendum VA medical opinion where the examiner provided a negative nexus opinion. Although the examiner was asked by the RO to address whether the disability discussed in the March 2021 addendum opinion is related to service, the examiner opined that there is no current diagnosis or treatment of either the elbow or forearm, and that there were no sequelae following an acute injury in basic training. The examiner did not provide any supporting rationale to explain why there was no disability, despite the March 2021 addendum opinion stating that there was. The examiner noted a private doctor prescription for physical therapy that did not state a diagnosis of an elbow condition. A careful review of the record finds that the Veteran submitted in support of their claim a May 2020 private prescription for physical therapy for neurological and range of motion functional deficits, which included two illegible handwritten diagnoses. The examiner further stated that there are no other private physician notes that state a complaint, diagnosis, or treatment for an elbow condition. However, the Board notes VA treatment records from April and November 2016, and March and December 2020 where the Veteran complained of arm and shoulder pain, and was even prescribed pain medication. Finally, the examiner explained that there was no evidence of pain on passive range of motion testing or when the joint is used in non-weight bearing, and that there are no abnormalities in the opposing joint. The examiner also did not address the Veteran's various lay statements. April 2016 VA treatment records note that the Veteran asserted chronic pain in the right shoulder and right arm since 1965. In a September 2016 statement, the Veteran wrote that they have had recurring pain and discomfort since 1965, and that it has increased. The Veteran also asserted that a 1995 MRI shows a calcium buildup on the humerus bone, and that they were told there must have been some kind of injury to it. During the February 2020 VA examination, the Veteran explained that since the injury they have been unable to use ladders, and that they have weakness and pain in the forearm on more than normal use. In an April 2020 statement, the Veteran wrote that the pain wakes them up many times at night, and that they had physical therapy in the 1970s and 1980s that helped for a little while, but that the pain always returned. In a separate April 2020 statement, the Veteran's spouse wrote that the Veteran has complained of discomfort and pain in the arm in the 20 years that they have been together. And in a May 2020 statement, the Veteran asserted that the pain flares up after working for a while, and that they lose forearm strength. Accordingly, remand is required. By this remand the Board makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the right forearm disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) First, the examiner is reminded that the definition of disability includes any condition that results in functional impairment of earning capacity, even if there is not an official diagnosis. (Continued on the next page) (b) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the right forearm disorder had onset in, or is otherwise related to, active service. (c) The examiner must address the following: 1) the March 2021 VA addendum opinion that the Veteran does have a disability of the forearm; 2) April 2016 VA treatment noting chronic pain in the right shoulder and right arm since 1965; 3) the September 2016 statement where the Veteran asserted recurring pain since 1965 and a calcium buildup in the humerus shown on 1995 MRIs; 4) the February 2020 VA examination where the Veteran complained of weakness and pain on repeated use over time; 5) April 2020 statements from the Veteran and their spouse reporting physical therapy in the 1970s and 1980s, and nightly pain; and 6) the May 2020 statement where the Veteran complained about pain and loss of strength on repeated use over time. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.