Citation Nr: 24012575 Decision Date: 03/25/24 Archive Date: 03/25/24 DOCKET NO. 19-08 965 DATE: March 25, 2024 REMANDED Entitlement to service connection for a right elbow disability, to include one manifested by pain and/or neurological symptoms, and to include as a result of exposure to herbicide agents, is remanded. Entitlement to service connection for a left elbow disability, to include one manifested by pain and/or neurological symptoms, and to include as a result of exposure to herbicide agents, is remanded. Entitlement to service connection for a right knee disability, to include one manifested by pain and/or neurological symptoms, and to include as a result of exposure to herbicide agents, is remanded. Entitlement to service connection for a left knee disability, to include one manifested by pain and/or neurological symptoms, and to include as a result of exposure to herbicide agents, is remanded. Entitlement to service connection for a cervical spine disability, to include one manifested by pain and/or neurological symptoms, and to include as a result of exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran had active service from June 1969 to September 1970, to include service in the Republic of Vietnam. The issues on appeal arise from a March 2017 rating decision. In August 2021, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer available. In February 2024, the Veteran declined to have a second hearing, stating that he recently received a 100 percent rating and did not need a hearing. In February 2022, the Board sent the Veteran a letter informing him that there was a discrepancy as to his representation as his most recent authorization on VA Form 21-22 in October 2020 shows he appointed The American Legion, however he had a different representative at his August 2021 Board hearing. The Veteran was asked to clarify whom he would like to represent him, including whether he wished to represent himself. In March 2022, the Pro Se Election Form was received from the Veteran and he stated that he wished to represent himself. The Board notes that in the February 2024 statement, the Veteran also indicated that he received a combined 100 percent rating but his award for the 60 percent combined rating was effective June 18, 2020, and his claim was in February 2016. The Board hereby refers this matter to the Agency of Original Jurisdiction (AOJ). In this regard, the Board notes that VA regulations require the filing of a notice of disagreement on the applicable standard form pursuant to 38 C.F.R. § 20.201. In a February 2023 rating decision, the AOJ granted service connection for diabetes mellitus type II and gastroesophageal reflux disease (GERD) with irritable bowel syndrome and thus these issues are no longer in appellate status. ? Issues 1-5: Entitlement to service connection for a right elbow disability, left elbow disability, right knee disability, left knee disability, and cervical spine disability. During the July 2021 Board hearing, the Veteran testified that problems with limitation of motion in his knees, elbows, and neck started during service when he came back from Vietnam. The Veteran has contended that he experienced knee and elbow pain since 1970, had neck problems from getting into an altercation with another service member and suffered a loss of consciousness. See, e.g., examination reports dated in November 2022 and May 2023. The Veteran also reported that he was an engine mechanic during service and his duties involved lifting heavy tanks and engines. See May 2023 VA elbow examination report. In May 2022, the Board remanded the issues in order for the Veteran to be afforded VA examinations to determine the nature and etiology of his claimed bilateral knee, bilateral elbow, and neck disabilities. The examiner was specifically instructed that the Veteran is competent to report his symptoms and history and that his reports must be acknowledged and considered in formulating any opinion. If his reports were discounted, the examiner was to provide a reason for doing so. Subsequently the VA opinions dated in November 2022 and May 2023 were obtained, however the examiner did not comply with the Board's remand directives and essentially based the opinions on the lack of documented problems in the service treatment records. In a VA opinion in November 2022, the examiner stated that the Veteran had diagnoses of cervical strain, degenerative arthritis, intervertebral disc syndrome, radiculopathy, and neuropathy to include ulnar neuropathy. The examiner further found that the Veteran's service treatment records do not reveal any complaints of neck pain and periodic health assessments also do not show persistent complaints of neck problems. Thus, the examiner opined that it is less likely than not that the Veteran has a cervical spine disability that is due to service. As for the knees, the examiner found that there was no knee pathology diagnosed. As for the elbows, the examiner stated that there was a diagnosis of medial epicondylitis and status post epicondylitis release with ulnar nerve neurolysis. The examiner stated that service treatment records and periodic health assessments do not reveal any particular incidents or complaints during service for elbow pain. Thus, the examiner opined that it is less likely than not that the Veteran has a bilateral elbow disability that is due to service. On VA knee examination in May 2023, the Veteran had a diagnosis of bilateral knee strain. In a May 2023 VA opinion, the examiner opined that the medial epicondylitis of the left elbow less likely than not incurred in or was caused by service based on the rationale that there was no objective evidence to show that the elbow disorder occurred during service. The examiner opined that it is very likely that the Veteran's elbow disorder, to include residuals of elbow surgery, occurred as a result of his occupation as an auto mechanic for 15 years. The examiner also opined that it is less likely than not that the Veteran's right elbow epicondylitis was incurred in or caused by service based on the rationale that there is no objective evidence to show that an elbow disorder occurred during service. The Veteran worked for 15 years as an auto mechanic, which likely caused him to overuse his arms. The examiner opined that the Veteran's bilateral knee strain was less likely than not incurred in or caused by service based on the rationale that there is no objective evidence in the Veteran's medical records to show that the Veteran's bilateral knee strain was incurred in service. The examiner opined that it was less likely than not that the Veteran's cervical spine disability, to include degenerative arthritis, was incurred or caused by service based on the rationale that there is no objective evidence in the Veteran's medical records to show that the cervical spondylosis and degenerative arthritis were incurred in service. Thus, for the above reasons there is a lack of compliance with the Board's remand directives. Compliance with the Board's remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also notes that in February 2023, a VA Memorandum shows that the Veteran participated in toxic risk activity. By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's claimed bilateral elbow disability. Any studies, including imaging studies, tests, and evaluations deemed necessary should be performed. After reviewing the claims folder, including a copy of this remand, examining the Veteran, conducting all necessary testing, and interviewing the Veteran, the examiner should: For each disability diagnosed, assess whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that it had its onset during the Veteran's active service, or is otherwise related to any incident of service, to include as due to his conceded exposure to herbicide agents in service or toxic exposure risk activities during service. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is specifically advised that the Veteran testified that problems with limitation of motion in his elbows started during service when he came back from Vietnam. The Veteran has contended that he experienced elbow pain since 1970. The Veteran also reported that he was an engine mechanic during service and his duties involved lifting heavy tanks and engines. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's claimed bilateral knee disability. Any studies, including imaging studies, tests, and evaluations deemed necessary should be performed. After reviewing the claims folder, including a copy of this remand, examining the Veteran, conducting all necessary testing, and interviewing the Veteran, the examiner should: For each disability diagnosed, assess whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that it had its onset during the Veteran's active service, or is otherwise related to any incident of service, to include as due to his conceded exposure to herbicide agents in service or toxic exposure risk activities during service. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is specifically advised that the Veteran testified that problems with limitation of motion in his knees started during service when he came back from Vietnam. The Veteran has contended that he experienced knee pain since 1970. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's claimed cervical spine disability. Any studies, including imaging studies, tests, and evaluations deemed necessary should be performed. After reviewing the claims folder, including a copy of this remand, examining the Veteran, conducting all necessary testing, and interviewing the Veteran, the examiner should: For each disability diagnosed, assess whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that it had its onset during the Veteran's active service, or is otherwise related to any incident of service, to include as due to his conceded exposure to herbicide agents in service or toxic exposure risk activities during service. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is specifically advised that the Veteran testified that problems with limitation of motion in his neck started during service when he came back from Vietnam. The Veteran also has contended that he had neck problems from getting into an altercation with another service member and suffered a loss of consciousness. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. ? 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinion requested, it must be returned to the providing examiner for corrective action. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mac, M. 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.