Citation Nr: 22017674 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-53 651 DATE: March 25, 2022 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral carpal tunnel syndrome (CTS) is remanded. Entitlement to service connection for left knee disability is remanded. REASONS FOR REMAND The Veteran served in the United States Army on active duty from February 1997 to May 1999. The issues come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's October 2017 VA Form does not clearly indicate whether the Veteran requested a hearing before the Board. The Board attempted to clarify the Veteran's choice of a Board hearing in September 2019 and January 2020 correspondence. The Board's September 2019 and January 2020 letters also stated that an individual's previous selection will be used to determine their choice of hearing if they do not respond within 30 days. The record is absent of the Veteran's response, and as the Veteran did not clearly indicate her request for a Board hearing, the Board considers any request for a hearing to be withdrawn. The issues were previously before the Board in March 2020. The Board remanded to provide additional development, including to make additional attempts to obtain the Veteran's outstanding separation examination report. The record contains April 2021 correspondence from the RO, stating the Veteran's service treatment records are unavailable for review and further efforts by VA to obtain the records would be futile. There has been substantial compliance with the remand instructions, and this matter is again before the Board. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for tinnitus is remanded. The Veteran contends that she suffers from tinnitus related to her active-duty service. The Veteran underwent a tinnitus examination in February 2021. The VA examiner provided the medical opinion that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. In support, the VA examiner stated that the Veteran had bilateral hearing within normal limits at enlistment and separation with no significant threshold shift at any frequency. When VA determines to provide a medical opinion, it must ensure that the opinion accurately addresses competent material evidence favorable to the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting a medical opinion is only as good and credible as the history on which it was based, and if based on an inaccurate factual premise it has no probative value). If a medical opinion is based on an inaccurate factual premise, then it is correct to discount the opinion entirely. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). Here, the Board notes the record does not contain the Veteran's separation examination or any indication of threshold shifts during service. Accordingly, as the February 2021 VA examination report was underpinned by inaccurate facts, the findings and conclusions made in the medical opinion are of no probative value. See Monzingo, 26 Vet. App. at 107. Thus, remand is required to provide the Veteran an adequate VA examination and medical opinion accurately addressing the evidence of record regarding the Veteran's claimed in-service harmful noise exposure. 2. Entitlement to service connection for bilateral carpal tunnel syndrome (CTS) is remanded. The Veteran contends that her bilateral CTS is related to her active-duty service. In the Veteran's March 2017 Notice of Disagreement, the Veteran asserted her bilateral CTS was related to her in-service duty position and the amount of manual typing required. The record contains the Veteran's November 2019 Counseling Record Narrative Report, completed as a part of the Veteran's participation in the VR&E Program Orientation. The Veteran's VR&E Program counselor noted the Veteran's bilateral CTS and the Veteran's use of wrist braces during pregnancy. The November 2019 Narrative Report noted the Veteran's bilateral CTS impaired the Veteran's ability to perform activities that require prolonged or constant use of the hands and wrists primarily during pregnancy. The Veteran underwent a VA peripheral nerve conditions examination in January 2017. While the VA examination noted the absence of symptoms attributable to any peripheral neuropathy of the Veteran's upper extremities, the VA examination did not address the Veteran's claim of bilateral CTS, or provide a medical opinion regarding the etiology of the Veteran's claimed condition. VA's duty to assist includes providing an examination and obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). Absent an adequate medical opinion addressing the causal nexus between the Veteran's claimed bilateral CTS and the Veteran's claimed in-service injury, the record is insufficient for the Board to decide on the Veteran's claim. Remand is needed to provide an adequate examination addressing the Veteran's claimed bilateral CTS. 3. Entitlement to service connection for left knee disability is remanded. The March 2020 Board remand directive instructed the VA examiner to specifically consider and discuss the Veteran's service treatment records showing positive examinations for issues involving the Veteran's bilateral knees, to include genu valgus bilateral, and tenderness to palpation at the left iliotibial insertion. Although the January 2021 VA examination identified the Veteran's service treatment records noting the Veteran's history of patellofemoral syndrome and a knee injury, the VA examiner did not address the evidence of record regarding the September 1997 and January 1998 service treatment records that revealed symptoms of a left knee condition identified in the March 2020 Board remand. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. As such, the Board finds that this claim is not ready for appellate review and must be remanded for compliance with the March 2020 remand instructions. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran's tinnitus. The record and a copy of this Remand must be made available to the examiner. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail, and correlated to a specific diagnosis. Following a review of the evidence of record, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral tinnitus had its onset during or is otherwise etiologically related to active-duty service. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report her symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of her disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran's bilateral carpal tunnel syndrome. The record and a copy of this Remand must be made available to the examiner. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail, and correlated to a specific diagnosis. Following a review of the evidence of record, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral carpal tunnel syndrome had its onset during or is otherwise etiologically related to active-duty service. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report her symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of her disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran's left knee condition. The record and a copy of this Remand must be made available to the examiner. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail, and correlated to a specific diagnosis. Following a review of the evidence of record, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's left knee condition had its onset during or is otherwise etiologically related to active-duty service. For the purposes of this examination, the VA clinician shall specifically consider and discuss the Veteran's September 1997 and January 1998 service treatment records noting left knee conditions, including bilateral genu valgus and tenderness to palpation at the left iliotibial insertion and left joint line. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report her symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of her disability. If such reports are rejected by the examiner, a reason for doing so must be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.