Citation Nr: 21042826 Decision Date: 07/14/21 Archive Date: 07/14/21 DOCKET NO. 16-05 064 DATE: July 14, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a left upper extremity disability is remanded. Entitlement to service connection for a right upper extremity disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left lower extremity disability is remanded. INTRODUCTION The Veteran had active service from June 29, 1976 to March 26, 1985; March 19, 2007 to April 27, 2008; January 3, 2011 to June 19, 2011; and March 20, 2012 to November 5, 2012. In November 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case was previously before the Board in June 2019 and June 2020, the above-noted issues were remanded for additional development. The case has since been returned to the Board for further appellate review. REASONS FOR REMAND Unfortunately, the above-noted claims must again be remanded in order to ensure compliance with the prior Board remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this respect, the Board notes examiners cannot wholly rely on a lack of contemporaneous treatment or diagnosis and ignore a veteran's statements related to lay observable symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, an opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran underwent VA neck and back examinations in February 2021, at which time he was diagnosed with cervical and lumbar spine degenerative arthritis with facet syndrome. Following examinations, the examiner concluded the Veteran's cervical and lumbar spine disabilities were less likely than not incurred in service. In support of these conclusions, the examiner principally cited to the Veteran's lack of treatment for his lumbar spine disability during service. However, the examiner wholly failed to explain how or why his July 2012 fall, or other injuries in service, could not have caused his current lumbar spine disability. With respect to the cervical spine disability, the examiner initially focused on the Veteran's lack of treatment for his neck following his July 2012 fall; however, the Veteran has not indicated his neck disability resulted from that fall, but rather from numerous injuries incurred during his time loading and unloading aircraft. With respect to that assertion, the examiner merely provided a conclusory statement indicating there was no "documentation" to support the Veteran's reports. Based on these insufficiencies, the Board finds the medical opinions provided by the February 2021 examiner to fall short of the comprehensive opinions requested in the Board's prior remand instructions. The Board also notes the Veteran underwent a VA peripheral nerves examination in February 2021, wherein he was diagnosed with left upper and lower extremity radiculopathy. Following that examination, the examiner found the Veteran's left upper and lower extremity disabilities to be consequentially related to his cervical and lumbar spine disabilities respectively. Therefore, the Board will not address those issues at this time, as they will be held in abeyance pending further development of the Veteran's claims for service connection for a cervical and lumbar spine disability. Further, in both the June 2019 and June 2020 remands, the Board noted the Veteran's reports of receiving a retirement examination in 2013. The Board has twice directed the RO to initiate all indicated development to obtain that record. The Board also instructed the RO that pursuant to 38 C.F.R. § 3.159 (c)(2), VA must make as many requests as are necessary to obtain records in the custody of a Federal department or agency. VA must attempt to obtain those records until it determines the records either do not exist or that any additional attempts to obtain those records would be futile. In such instances, VA must prepare a formal finding of unavailability for the record. Still, to date the RO has neither obtained the Veteran's 2013 separation examination nor prepared a formal finding of unavailability for the record. Based on the foregoing insufficiencies, substantial compliance with the Board's prior remand instructions has not been achieved. As such, a remand is again required. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to specifically include his 2013 retirement examination. If any requested records are not available, a formal finding of unavailability must be prepared for the record and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, obtain a VA examination by an Orthopedic Specialist with sufficient experience and expertise, who has not previously examined the Veteran, to address the etiology of his claimed right upper extremity, lumbar spine, and cervical spine disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed right upper extremity, lumbar spine, or cervical spine disabilities at least as likely as not (a 50 percent probability or greater) originated during his period of active service or are otherwise etiologically related to his active service. Following a review of the relevant records and lay statements, the appropriate examiner should also state an opinion with respect to whether the Veteran's right upper extremity disability at least as likely as not (a 50 percent probability or greater): a) was caused by his cervical spine disability; or b) was worsened by his cervical spine disability. The examiner must provide a complete rationale for all proffered opinions. In this respect, the examiner must discuss and consider the Veteran's competent lay statements. Specifically, the examiner is asked to acknowledge and discuss the Veteran's reports of persistent and ongoing back pain following a fall in July 2012, as well as his reports of back, neck, and upper extremity pain resulting from injuries sustained loading and unloading aircraft pallets. In addition, the examiner should acknowledge and discuss the Veteran's treatment for several back injuries in service in March 1978, August 1981, and August 2012. Likewise, the examiner is asked to acknowledge and discuss the Veteran's treatment for a neck injury in February 1981 and May 2012. Further, the examiner is also asked to acknowledge and discuss the Veteran's treatment for ongoing neck and back pain in July 2013, shortly after his most recent period of active service. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.