Citation Nr: 22017622 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-12 884 DATE: March 25, 2022 REMANDED Entitlement to service connection for a bilateral elbow disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1983 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This matter was previously before the Board in April 2019 and July 2021. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran asserts that his bilateral elbow disability is due to his military service or in the alternative, was caused or aggravated by his service-connected disabilities. He specifically contends that his service-connected bilateral leg radiculopathy, back disability, and bilateral knee disabilities caused him to frequently fall, which resulted in injuries to his elbows. The April 2019 Board remand found that the October 2018 VA medical opinions were inadequate as some of the opinions were speculative and some of the opinions did not include any medical rationale, were unclear, and required further clarification. Ultimately, the Board determined that the question for consideration is not whether the Veteran's back disability directly caused the Veteran's elbow disabilities, but rather, whether the effects of his back disability proximately caused the Veteran to fall; thus, resulting in his bilateral elbow disabilities. The examiner also did not consider whether the combined effects of the Veteran's service-connected back disability, right knee disability, left knee disability, and lower extremity radiculopathy, together, could have proximately caused the Veteran's to fall, thus, causing his bilateral elbow disabilities. The Board also found that the October 2018 examiner noted that the Veteran's employment as a mechanic may have caused many of his elbow complaints and that the Veteran's lower back was likely strained after many years as a mechanic; however, there is no evidence of record that would support these conclusions. Furthermore, the examiner did not provide any rationale or other evidence to support this conclusion. The Veteran's back disability was found to be caused by his service-connected right knee, and there is no evidence to suggest otherwise. Finally, the Board noted that the October 2018 examiner did not consider the Veteran's lay statements in the medical opinions. The Veteran had reported that his bilateral elbow condition began in service in that his right knee would give out and he was constantly falling on his elbows. The Veteran's service treatment records (STRs) do not show any evidence of falls, but they do show that he received three surgical procedures to his right knee and complained of right elbow pain in one instance. Additionally, in a November 1987 examination for his right knee, the Veteran reported having fallen three times due to his right knee. The Board determined that this evidence was not considered in the medical opinions and a new examination and opinion was warranted. In November 2019, the RO obtained another VA examination and medical opinion in accordance with the April 2019 Board remand. The November 2019 VA examiner opined that it was less likely than not that the Veteran's bilateral elbow condition was due to his active service as there was no evidence to support the claim that the elbow condition occurred during the Veteran's military service. However, the November 2019 medical opinion did not address the Veteran's allegation of secondary service connection and an addendum medical opinion was obtained in May 2020. The May 2020 VA examiner opined that it was less likely than not that any identified right, or left elbow disability was proximately caused by falls, as due to the Veteran's service-connected disabilities, together or independently, to include service-connected right knee disability, service-connected left knee disability, service-connected lower extremity radiculopathy, and/or service-connected low back disability. The May 2020 examiner stated that although the Veteran's STRs show that he received three surgical procedures to his right knee and complained of right elbow pain, neither an orthopedic report from February 1988 or the STRs provided any evidence of any complaints of a fall due to any service-connected orthopedic conditions and the fact that subsequent orthopedical medical records from September 2007 were silent for any evidence of a bilateral elbow condition nor complaints of a fall until more than thirty years after discharge from service. The July 2021 Board decision found that the November 2019 and May 2020 medical opinions were inadequate as the examiners did not address whether the Veteran's service-connected disabilities aggravated a current disability of either elbow. Consequently, the Board determined that a new medical opinion was necessary as the medical opinions failed to adequately address the issue raised. In September 2021, an addendum medical opinion was obtained pursuant to the July 2021 Board remand. The same examiner who provided the May 2020 medical opinion offered the September 2021 addendum opinion. The examiner stated that the medical opinions/rationale for direct service connection and secondary service connection were previously rendered and only addressed the aggravation prong. However, in the July 2021 Board remand instructions, the Board specifically requested the examiner to provide an opinion for all three prongs of service connection pertinent in this case (direct, secondary, and aggravation). As the examiner only addressed aggravation, the Board finds that there has not been substantial compliance with the remand orders. See Stegall v. West, 11 Vet. App 268 (1998). Furthermore, regarding the aggravation opinion, the September 2021 examiner opined that it is less likely than not that the Veteran's either bilateral elbow conditions were aggravated by the Veteran's above noted service-connected conditions. As rationale, he stated that his medical opinion is based upon the review of the Veteran's claim file, to include the above noted medical records, medical records in Capri, the above noted recent BVA remand which requested the medical opinion in respect to aggravation. The examiner noted that subsequent Rothman Orthopedic medical records from September 2007, more than twenty years after military discharge, were silent for any complaints of or evidence of a bilateral elbow condition during the September 2007 orthopedic examination. The examiner also referenced medical records in which a fall history was possibly due to his history being a former boxer to be at an increased risk of developing seizure activity and subsequent falls and injuries to include injuries to the elbows. The examiner concluded that the medical records were silent for any evidence of any progression nor complications of the Veteran's service-connected conditions that would have predisposed the Veteran to falls and/or other subsequent conditions that would result in an aggravation of either bilateral elbow condition. However, when offering his medical opinion, the examiner did not consider the Veteran's lay contentions regarding his history of falls as early as November 1987 when he reported that he had fallen three times due to his right knee. See November 1987 VA knee examination. Additionally, the Board observes that there is a statement from one of the Veteran's private treating physicians, Dr. M. R. from The Philadelphia Hand Center that the Veteran's chronic bilateral elbow pain is secondary to his repeated falls to both extremities. This statement was not considered by the examiner. Although there is no rationale offered with this statement, the statement is from his treating physician, which provides some probative evidence. For the reasons stated above, the Board finds that remand is necessary to obtain an addendum opinion that adequately address all theories of entitlement and the Veteran's lay statements and all the evidence of record. The matters are REMANDED for the following action: 1. Obtain additional VA medical treatment records from July 2017 to present. All reasonable attempts should be made to obtain any identified records. 2. After completion of the above, arrange for a VA addendum medical opinion by a VA examiner other than the previous examiners to address the claim for a bilateral elbow disability. The examiner should have appropriate expertise in orthopedic disorders. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's disability of either elbow had its onset in service or was otherwise incurred in service? The examiner should specifically address the Veteran's in-service complaint of right elbow pain, as well as the Veteran's lay statements of record regarding falls in service. b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's disability of either elbow was caused by or aggravated by, or a result of his service-connected disabilities, to include his service-connected right knee disability, left knee disability, service-connected bilateral lower extremity radiculopathy, and/or service-connected low back disability? Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. For such questions of aggravation, the examiner must consider whether there was worsening, even if only temporary, over the course of the claim. A recent Court case clarified that secondary service connection does not require permanent worsening to qualify for service connection based on aggravation by a service-connected disability. See Ward v. Wilke, 31 Vet. App. 233 (2019). The examiner is reminded that he or she must address both causation and aggravation. In offering the above opinions, the examiner must include a discussion of the following evidence: 1) the November 1987 VA knee examination where the Veteran reported having fallen three times due to his right knee, 2) the October 2018 elbow examination where the Veteran reported that his bilateral elbow condition began in service in that his right knee would give out and he was constantly falling on his elbows, 3) the May 2017 statement from Dr. M.R., regarding the Veteran's bilateral elbow pain secondary to his repeated falls to both extremities. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to 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 examiners should provide a fully reasoned explanation. The examiner is reminded that rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings and must reflect consideration of the competent lay assertions of pertinent symptomology from service to the present. All opinions or findings provided must include an explanation for the bases for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.