Citation Nr: 22014161 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-62 976 DATE: March 11, 2022 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a bilateral shoulder condition is remanded. Entitlement to service connection for a nerve disability affecting the right upper extremity, to include carpal tunnel syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1976 to October 1976, from August 1977 to August 1979 and May 1982 to August 1985, with additional service in the Reserves. The Board previously remanded the claim, most recently in March 2021. There has not been substantial compliance with the remand directives and the claims must be remanded again. Stegall v. West, 11 Vet. App. 268(1998). 1. Entitlement to service connection for a right knee disability is remanded. The claim must be remanded again because the April 2021 VA examination is inadequate. Despite the Veteran's complaints of knee pain during service, the examiner appears to impermissibly rely on a lack of "objective evidence" in providing a negative nexus opinion. 2. Entitlement to service connection for a neck disability is remanded. 3. Entitlement to service connection for a bilateral shoulder condition is remanded. 4. Entitlement to service connection for a nerve disability affecting the right upper extremity, to include carpal tunnel syndrome is remanded. The neck claim must be remanded again because the April 2021 VA opinion is inadequate because it is internally inconsistent. The examiner said the neck disability is a congenital disease, but then within the same opinion the examiner states that there is no objective evidence that the congenital disease existed prior to service. The bilateral shoulder and nerve disabilities must be remanded because they are inextricably intertwined with the claim for the neck disability. The VA examiner used the wrong standard for secondary service connection. The appropriate standard of whether there is any increase in disability must be addressed on remand. The matters are REMANDED for the following action: 1. Forward copies of all pertinent records to an appropriate VA examiner to obtain an opinion on the nature and likely etiology of any diagnosed neck disability. If the examiner determines that an opinion cannot be provided without an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. The examiner must answer the following: (a) Identify all currently diagnosed neck disabilities. (b) Is the diagnosed neck disability a congenital defect or a congenital disease? A disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. Explain. (c) If the neck disability is a congenital defect, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has an additional disability due to an in-service disease or injury superimposed upon such defect. (d) If the neck disability is a congenital disease, does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran had a neck disease that existed prior to his entry onto active duty? (e) If the answer to (d) is no, does the evidence of record clearly and unmistakably show that the preexisting neck disease was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. The examiner is informed that aggravation here is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms beyond its natural progression. (f) If the Veteran's neck disability is neither a congenital defect nor congenital disease, the examiner should opine as to whether it at least as likely as not (a 50 percent probability or greater) that the disability is related to service. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 2. Forward copies of all pertinent records to an appropriate VA examiner to obtain opinions as to the likely etiology of any diagnosed right knee, bilateral shoulder and right upper extremity nerve disabilities. If the examiner determines that an opinion cannot be provided without an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. The examiner must address the following: (a) Identify all currently diagnosed right knee, bilateral shoulder and right upper extremity nerve disabilities. (b) Is it at least as likely as not (50 percent probability) that any currently diagnosed right knee, bilateral shoulder and right upper extremity disabilities was incurred in or is otherwise related to service? (c) Is it at least as likely as not that any currently diagnosed right knee, bilateral shoulder or right upper extremity disability is (i) caused by a neck disability or (ii) aggravated (defined here as any increase in disability) a neck disability? The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 3. Confirm that the VA medical opinions provided comports with this remand, specifically that the appropriate standard for aggravation, as defined above, are properly applied in the examiner's opinions. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.