Citation Nr: 23019059 Decision Date: 03/28/23 Archive Date: 03/28/23 DOCKET NO. 18-47 251 DATE: March 28, 2023 REMANDED Entitlement to service connection for a left elbow disability, to include as secondary to service-connected left shoulder disability, is remanded. Entitlement to service connection for a left hand disability, to include as secondary to service-connected left shoulder disability, is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to a rating in excess of 20 percent for service-connected left shoulder strain is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from April 1982 to September 1982, and the Army National Guard from December 1982 to September 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) In February 2022, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video hearing. A transcript of the hearing is of record. In June 2022, the Board remanded the Veteran's claims for additional development. Regrettably, the Board finds that another remand is necessary prior to adjudication of the service connection claims for a low back disability and neck disability, and increased rating claim for left shoulder strain. 1. Entitlement to service connection for a left elbow disability, to include as secondary to service-connected left shoulder disability. 2. Entitlement to service connection for a left hand disability, to include as secondary to service-connected left shoulder disability. The Veteran contends that he currently has a left elbow disability and left hand disability that is directly related to his active duty service or is otherwise proximately caused or aggravated by his service-connected left shoulder disability. After review of the record, the Board finds that additional development of the medical evidence is needed, prior to adjudication of the claims and in accordance with VA's duty to assist. In August 2022, the Veteran underwent VA examinations to assess the current nature and etiology of his claimed left elbow and left hand disabilities. Upon examinations, the examiner noted the Veteran's reports of experiencing left elbow and left hand numbness and tingling, however, found that the Veteran does not have a current diagnosis associated with his left elbow and/or left hand. The examiner provided unfavorable medical opinions based upon the Veteran not having current diagnosable disabilities. Nevertheless, the Board finds these examinations and medical opinions to be inadequate, as the examiner failed to consider the diagnosis of left upper extremity radiculopathy as shown in VA medical treatment records, especially given the Veteran's continuous assertions of feeling tingling and/or numbness from his fingers to his shoulders; or, in the alternative, failed to provide an adequate opinion as to the change in diagnosis from that which was reflected in the record. Therefore, the Board finds that additional VA examinations and medical opinions should be provided to the Veteran that adequately assesses his claimed left elbow and left hand disabilities. As such, a remand is necessary. 3. Entitlement to service connection for a low back disability is remanded. 4. Entitlement to service connection for a neck disability is remanded. The Veteran contends that he currently has a low back disability and neck disability that is directly related to his active duty service. After review of the record, the Board finds that additional development of the medical evidence must be provided, prior to adjudication of the claims and in accordance with VA's duty to assist. In August 2022, the Veteran underwent VA examinations to assess the current nature and etiology of his claimed low back and neck disabilities. Upon examinations, the examiner diagnosed the Veteran with degenerative arthritis in the back and neck, however, provided unfavorable medical nexus opinions as to these conditions being related to the Veteran's active duty service. Subsequently, in November 2022, the Veteran was provided an addendum VA medical opinion due to the inadequacy of the August 2022 opinions based on the examiner's failure to discuss the Veteran's lay statements, to include his in-service injury/incurrence, the onset of symptoms, and the progression of the disorder thereafter. Upon review, the examiner provided another unfavorable medical nexus opinion. Nevertheless, the Board agrees with VA's determination that the August 2022 VA medical opinions are inadequate for the same reasons as noted above, and further finds that the November 2022 addendum VA medical opinion is also inadequate, as the examiner improperly relied on the lack of treatments shown in service for neck or back pain, and the lack of contemporaneous medical evidence post service, in providing the overall negative conclusions. Therefore, as the record does not contain an adequate VA medical opinion to properly assess the Veteran's claimed conditions, the Board finds that another addendum VA medical opinion(s) should be provided. As such, a remand is necessary. Entitlement to a rating in excess of 20 percent for service-connected left shoulder strain is remanded. The Veteran asserts that an increased evaluation is warranted, as his symptoms have worsened. After review of the record, the Board finds that additional development of the medical evidence must be provided, prior to adjudication of the claim and in accordance with VA's duty to assist. The record reflects that the Veteran has been afforded 3 VA examinations (dated May 2018, March 2019, and August 2022) during the appeal period to assess the current severity of his left shoulder strain. Upon review of each, the Board notes that the Veteran reported experiencing flare-ups during the May 2019 VA examination, however, the examination does not comply with the requirements set forth in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, while the May 2018 and August 2022 VA examinations do not reflect the Veteran reported experiencing any flare-ups, the Board notes that during the February 2022 Board hearing, the Veteran testified to experiencing flare-ups when he uses his left shoulder during daytime activities that causes more issues at night. As the Veteran is competent to relay evidence that relate to observations that can be made by a lay person (see Falzone v. Brown, 8 Vet. App. 398 (1995)), the Board finds that the Veteran's testimony is enough evidence to trigger the application and requirements of Sharp during the entire appeal period, or at the very least, during the time period of the Board hearing. Therefore, the Board finds that retrospective medical opinions should be provided that adequately assesses the Veteran's left shoulder severity, to include any additional functional loss during flare-ups. As such a remand is necessary. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding medical treatment records. 2. Provide the Veteran with VA examinations by an appropriate clinician to assess the current nature and etiology of his claimed left elbow and left hand disabilities. Also, provide him with VA medical opinions by an appropriate clinician to assess the current nature and etiology of his claimed low back and neck disabilities, and to assess the current severity of his left shoulder strain. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. If the examiner(s) deems that another VA examination is necessary in order to provide the requested opinion(s), please schedule one. Following complete review of the record, the examiner must address the following: (a) Identify and clearly describe all diagnoses related to the Veteran's left elbow and left hand disabilities, to include any pain that causes functional impairment and the diagnosis of left upper extremity radiculopathy. If there is a change in diagnosis from that which was reflected in the record, the examiner must explicitly state so, and provide an explanation as to why. (b) For any diagnosed disability related to the Veteran's left elbow and/or left hand, the examiner must opine whether each diagnosed disorder is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service, to include the in-service injury from falling off of a Humvee. (c) For any diagnosed disability related to the Veteran's left elbow and/or left hand, the examiner must opine whether each diagnosed disorder is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) was proximately caused or aggravated by his service-connected left shoulder disability. The examiner must discuss causation and aggravation in the requested opinions. (d) Opine whether each diagnosed disorder is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's low back or neck disability had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service, to include the in-service injury from falling off of a Humvee. The examiner must discuss the Veteran's lay statements regarding onset and continuity of symptomatology. (e) Provide retrospective medical opinions for the time periods of May 2018, March 2019, February 2022, and August 2022, regarding the severity, frequency, and duration of any flare-ups of the left shoulder. The examiner must attempt to elicit the necessary information based on all the evidence of record. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's left shoulder strain, and report or estimate functional loss in terms of the degree of additional loss of range of motion. If the examiner cannot express functional loss in this manner without resorting to speculation, he/she must explain the basis for his/her conclusion that a non-speculative opinion cannot be offered. Any opinion should include a detailed rationale. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.