Citation Nr: 22015092 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 16-63 470 DATE: March 16, 2022 REMANDED Entitlement to service connection for left side chest pain is remanded. Entitlement to service connection for burning sensation to bilateral fingertips is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1999 to February 2006, and from August 2006 to July 2009, including service in Iraq and Kuwait. He received the Iraq Campaign Medal, Bronze Star, Combat Infantryman Badge, Purple Heart, and other decorations. The Board sincerely thanks him for his honorable service to the United States during wartime. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Board previously remanded these matters in December 2018 and July 2021. In July 2021, the Board asked the agency of original jurisdiction (AOJ) to schedule a VA examination with a neurologist identifying all current and former peripheral nerve disabilities of the left upper extremities and left side of the chest and addressing whether any such disabilities were proximately caused or aggravated by a service-connected disability. See BVA Decision, July 2021. The Veteran appeared for a VA examination and a clinician rendered a medical opinion in October 2021. Regrettably, the Board finds that the AOJ has not substantially complied with the prior remand directives. Further remand is necessary to achieve compliance with VA's duty to assist. See Stegall v. West, 11 Vet. App. 268, 271 (2011) (holding that the Board errs as a matter of law when it fails to ensure substantial compliance with its own remand directives). 1. Entitlement to service connection left side chest pain is remanded. 2. Entitlement to service connection for burning sensation to bilateral fingertips is remanded. These claims must be remanded for an adequate medical opinion. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA provides a medical opinion it must be adequate for decisional purposes). The VA examiner in October 2021 opined, among other things, that "[t]he veteran reports left side arm pain with paresthesia in left little and ring fingers. He has also left side chest pain. But today's examination was normal, no neurological deficits and no sensory loss, so no clear diagnosis can be made." This opinion does not comply with the Board's directives. Notably, even if the Veteran's condition has presently resolved, that does not preclude a grant of service connection for the part of the appeal period in which the Veteran had symptoms of the disorders. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Furthermore, a Veteran is considered competent to report a sensation of burning in the extremities and chest pain, as such is within lay capacity. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The October 2021 VA examiner acknowledged the Veteran's symptomatic reports of burning and paresthesia in the fingers and pain in the left side of the chest, but provided a negative opinion based on lack of objective evidence of a diagnosed disability. This is the same contradiction that the Board previously found within the November 2019 VA examination. Under the circumstances, additional clarification is needed before a decision on the merits. The Board is aware that a prior decision requested a medical opinion by a neurologist. The AOJ requested a VA examination from a neurologist. However, the VA examination contractor explained that it did not have access to a neurologist, and that it routinely uses generalist providers to complete neuropathic examinations. The AOJ ultimately contacted the Veteran by email, informed him that the contractor did not have access to a neurologist, and gave him the option of either having a VA examination with a generalist provider, or obtaining a private medical opinion from a neurologist at his own expense. The Veteran elected to proceed with the first option, and underwent a VA examination in October 2021. Applicable law provides that VA examinations may be performed by anyone with the requisite medical expertise. Cox v. Nicholson, 20 Vet. App. 563, 568 (2007). In this case, and considering the inability of the VA contractor to provide the requested specialist, the Board finds that a general clinician may provide an opinion, if it is otherwise adequate and compliant with the Board's directives. In remanding this matter, the Board makes no credibility determinations as to the Veteran's statements. Such findings will be made when (or if) these matters return to the Board. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board sincerely regrets the delay occasioned by multiple remands and appreciates the Veteran's patience as VA works to fulfill its statutory obligation to assist him in obtaining evidence necessary to support his claims for compensation. The matters are REMANDED for the following action: Obtain an addendum medical opinion from any suitably qualified clinician regarding the etiology of the Veteran's left side chest pain and burning sensation to bilateral fingertips. The clinician is asked to review the claims file and opine as follows: (a) Is it at least as likely as not that the Veteran's reported left side chest pain and burning sensation in the bilateral fingertips is proximately due to or a result of a service-connected disability, to include a chronic left shoulder strain and cervical degenerative disc disease with mild neuroforaminal stenosis at the right C3-C4 and C5-C6 levels? (b) Is it at least as likely as not that the Veteran's reported left side chest pain and burning sensation in the bilateral fingertips underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability, to include to include a chronic left shoulder strain and cervical degenerative disc disease with mild neuroforaminal stenosis at the right C3-C4 and C5-C6 levels? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Any "incremental increase in disability" need not be permanent. The clinician is advised that the Veteran is considered competent to report symptoms of left side chest pain and burning sensation in the bilateral fingertips, even in the absence of direct observation or objective findings. An opinion that the condition is presently resolved does not address the etiology of the Veteran's described symptoms when they were present, and will require another remand. A complete rationale should be provided for all opinions. The examiner is asked to consider and discuss relevant lay and medical evidence, to specifically include: VA orthopedic consultation record dated June 8, 2011, which noted that the axillary pain the Veteran had in his left upper extremities was likely related to cervical spine pathology and that his multilevel degenerative joint disease would be a "good explanation for the fingertip dysesthesia and radiating arm pain." See Medical Treatment Record Government Facility, January 2012. The Veteran's lay assertions that his symptoms of radiating left side chest pain and burning sensation in the bilateral fingertips are caused or aggravated by his service-connected cervical spine disorder and/or left shoulder disorder The clinician is reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the clinician's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, Associate 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.