Citation Nr: 23030810 Decision Date: 05/25/23 Archive Date: 05/25/23 DOCKET NO. 09-28 120A DATE: May 25, 2023 ORDER The portion of the January 2022 Board of Veterans' Appeals (Board) decision remanding the claim of entitlement to service connection for an elbow condition is vacated. The portion of the January 2022 Board decision remanding the claim of entitlement to service connection for a right hip condition is vacated. The portion of the January 2022 Board decision remanding the issue of entitlement to service connection for a neck condition is vacated. The portion of the January 2022 Board decision remanding the issue of entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is vacated. Entitlement to service connection for hypertension is dismissed. REMANDED Entitlement to service connection for a right hip condition, to include as secondary to service-connected bilateral plantar fasciitis with pes planus and arthritis (bilateral foot conditions), is remanded. Entitlement to service connection for a neck condition, to include as secondary to service-connected bilateral foot conditions and degenerative facet joints and mild disc narrowing (back conditions), is remanded. Entitlement to service connection for a right elbow condition, to include cubital tunnel syndrome (CTS) and cervical radiculopathy, is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to SMC based on the need for regular aid and attendance is remanded. Entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and automobile adaptive equipment, or automobile adaptive equipment only (automobile allowance) is denied. Entitlement to a certificate of eligibility for specially adapted housing (SAH) is remanded. Entitlement to a certificate of eligibility for a special home adaptation (SHA) grant is remanded. FINDINGS OF FACT 1. In its January 2022 decision, following the issuance of a Joint Motion for Partial Remand (JMPR) in October 2021, the Board, inter alia, remanded the claims of entitlement to service connection for an elbow condition, a right hip condition, and a neck condition, as well as the claim of entitlement to SMC based on the need for regular aid and attendance. 2. In November 2021, the Court of Appeals for Veterans Claims (Court) revoked its order granting the JMPR. 3. At the time of the January 2022 decision, the issues of entitlement to service connection for an elbow condition, a hip condition, and a neck condition, as well as entitlement to SMC based on the need for regular aid and attendance, were before the Court on appeal. Therefore, the issues were not before the Board on appeal. 4. In an April 2023 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran's pending claim of entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. Vacatur as to the part of the Board's January 2022 decision remanding the Veteran's claim of entitlement to service connection for an elbow condition is warranted. 38 U.S.C. §§ 7103(c), 7104(a); 38 C.F.R. § 20.904. 2. Vacatur as to the part of the Board's January 2022 decision remanding the Veteran's claim of entitlement to service connection for a right hip condition is warranted. 38 U.S.C. §§ 7103(c), 7104(a); 38 C.F.R. § 20.904. 3. Vacatur as to the part of the Board's January 2022 decision remanding the Veteran's claim of entitlement to service connection for a neck condition is warranted. 38 U.S.C. §§ 7103(c), 7104(a); 38 C.F.R. § 20.904. 4. Vacatur as to the part of the Board's January 2022 decision remanding the Veteran's claim of entitlement to SMC based on the need for regular aid and attendance is warranted. 38 U.S.C. §§ 7103(c), 7104(a); 38 C.F.R. § 20.904. 5. The criteria for dismissal of the appeal seeking service connection for hypertension have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 2003 to February 2005. These matters come before the Board on appeal from rating decisions, dated February 2015, April 2015, April 2016, and August 2017, issued by a Department of Veterans Affairs (VA) regional office. In May 2016, the Veteran testified via video conference before a Veterans Law Judge (VLJ) regarding the issues of, inter alia, entitlement to SMC based on the need for regular aid and attendance, as well as entitlement to certificates of eligibility for SAH, an SHA grant, and an automobile allowance. See May 2016 Board Hearing Transcript. In September 2021, the Board notified the Veteran that the VLJ who conducted the hearing was no longer with the Board. The Board offered the Veteran a new hearing before another VLJ and provided him with 30 days within which to respond. See September 2021 Board Correspondence. In October 2021, the Veteran responded that he did not wish to appear at another Board hearing. See October 2021 Correspondence. By way of background, in an August 2019 decision, the Board remanded the issues of entitlement to service connection for a neck condition, CTS, and right hip condition, as well as eligibility for SMC based on the need for regular aid and attendance. The Board denied, inter alia, the issues of entitlement to certificates of eligibility for SAH, an SHA grant, and an automobile allowance, and declined to reopen the Veteran's claim of entitlement to service connection for hypertension. The Veteran appealed the denials to the Court. In an August 2020 Memorandum Decision, the Court remanded the appealed matters for additional development. Thereafter, in an April 2021 decision, the Board remanded the issues of entitlement to certificates of eligibility for SAG, an SHA grant, and an automobile allowance, as well as, inter alia, the issue as to whether new and material evidence had been received sufficient to warrant reopening the Veteran's claim of entitlement to service connection for hypertension. In a January 2021 decision, the Board remanded the issues of, inter alia, entitlement to certificates of eligibility for SAH, an SHA grant, and an automobile allowance. The Board also denied the issues of entitlement to service connection for a TBI, right hip condition, neck condition, CTS, and SMC based on the need for regular aid and attendance. The Veteran appealed the denials to the Court. In October 2021, the parties entered into a JMPR, in which the parties agreed that a remand was warranted with respect to the issues of entitlement to service connection for a right hip condition, a neck condition, and CTS, as well as entitlement to SMC based on the need for regular aid and attendance. Specifically, the parties agreed that, with respect to entitlement to SMC, the Board did not address relevant VA and Social Security Administration (SSA) records. With respect to the Veteran's claims of entitlement to service connection for CTS, a right hip condition, and a neck condition, the parties agreed that a remand was warranted as the Board had relied on inadequate medical opinions. The parties also agreed that the Veteran had not pursued the issue of entitlement to service connection for a TBI and, therefore, the denial thereof should not be disturbed. In October 2021, the Court granted the JMPR and remanded the issues for further development. However, in November 2021, the Court's order granting the JMPR was revoked. Nonetheless, in a January 2022 decision, the Board reopened the Veteran's claim of entitlement to service connection for hypertension, and remanded such claim, along with the Veteran's claims of entitlement to service connection for a right hip condition, a neck condition, and CTS. The Board also remanded the Veteran's claim of entitlement to SMC based on the need for regular aid and attendance, as well as entitlement to certificates of eligibility for SAH, an SHA grant, and an automobile allowance. In a November 2022 Memorandum Decision, the Court again addressed the Board's January 2021 decision. With respect to the Veteran's claims of entitlement to service connection for CTS, a right hip condition, and a neck condition, as well as entitlement to SMC, the Court essentially reiterated what the parties had already agreed to in the October 2021 JMPR. However, the Court also found that a remand was warranted for the Veteran's claim of entitlement to service connection for a TBI, finding that the Board had not adequately addressed relevant VA treatment records. As an initial matter, the Board notes that, in a January 2023 rating decision, service connection was granted for gastroesophageal reflux disease (GERD) and left CTS, the Veteran's diagnosed left elbow condition. This represents full grants of the benefits sought on appeal with respect to the Veteran's claimed left elbow condition and GERD. Therefore, the issues of entitlement to service connection for GERD and a left elbow condition is not before the Board on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The issue of entitlement to service connection for a right elbow condition remains on appeal and is properly included in the list of issues before the Board on appeal. Vacatur 1. The portion of the January 2022 Board decision remanding the claim of entitlement to service connection for an elbow condition is vacated. 2. The portion of the January 2022 Board decision remanding the claim of entitlement to service connection for a right hip condition is vacated. 3. The portion of the January 2022 Board decision remanding the issue of entitlement to service connection for a neck condition is vacated. 4. The portion of the January 2022 Board decision remanding the issue of entitlement to SMC based on the need for regular aid and attendance is vacated. The Board may vacate an appellate decision at any time upon request of the appellant or their representative, or on the Board's own motion, when an appellant has been denied due proceed of law. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. Here, in its January 2022 decision, following the issuance of a JMPR in October 2021, the Board, inter alia, remanded the claims of entitlement to service connection for an elbow condition, a right hip condition, and a neck condition, as well as the claim of entitlement to SMC based on the need for regular aid and attendance. However, as noted above, the Court revoked its order granting the JMPR in November 2021. As such, the issues of entitlement to service connection for an elbow condition, a right hip condition, and a neck condition, as well as the claim of entitlement to SMC based on the need for regular aid and attendance, remained on appeal before the Court and, therefore, were not yet on appeal before the Board. Based on the above, the Board, on its own motion, finds that the remand of these appeals should be vacated and reconsidered by the Board. The Board notes that the January 2022 also found that new and material evidence had been received sufficient to reopen the claims of entitlement to service connection for hypertension and GERD, and remanded the claims of entitlement to service connection for GERD and hypertension, as well as entitlement to certificates of eligibility for SAH, an SHA grant, and an automobile allowance. These issues remain undisturbed. Dismissal 5. Entitlement to service connection for hypertension is dismissed. As indicated above, the Veteran's claim was remanded by the Board in January 2022. After the matter had been recertified to the Board, the AOJ granted service connection for hypertension in an April 2023 rating decision. As the benefit sought on appeal has been granted, there remains no case or controversy, or dispute of fact or law, regarding the issue. The claim seeking entitlement to service connection for hypertension is therefore dismissed. See 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS FOR REMAND 1. Entitlement to service connection for a right hip condition, to include as secondary to service-connected bilateral foot conditions, is remanded. The Board regrets the delay associated with this remand, particularly given the lengthy procedural history. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the AOJ to conduct additional development. Specifically, a remand is necessary to allow the AOJ to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed right hip condition. In July 2022, the Veteran underwent a VA examination in which the examiner noted a diagnosis of bilateral hip strain. Ultimately, the examiner opined that the Veteran's right hip condition was less likely than not related to his active duty service. In support of this opinion, the examiner noted that the Veteran's VA treatment records revealed an onset of symptomatology in June 2017, and his STRs did not contain complaints, treatment, or diagnosis of the condition. See July 2022 VA Hip and Thigh Conditions Disability Benefits Questionnaire (DBQ); July 2022 VA Hip Medical Opinion DBQ. In November 2022, the examiner provided an addendum opinion, again opining that the Veteran's right hip condition was less likely than not related to his active duty service. In support of this opinion, the examiner again noted an onset of symptomatology in 2017 and stated that this was not during a period of active duty. See November 2022 Addendum DBQ. However, the Veteran's VA treatment records reveal complaints of hip pain and tightness as early as October 2009. Such records also reveal that, as early as September 2012, the Veteran underwent physical therapy aimed at improving, inter alia, his right hip strength and flexion. See Battle Creek VA Medical Center (VAMC) records, received April 2016 in CAPRI; Cleveland VAMC records, received November 2018 in CAPRI; Ann Arbor VAMC records, received November 2018 in CAPRI; Central Alabama VA Healthcare System (VAHCS) records, received February 2022, September 2022, and January 2023 in CAPRI. As such, the opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate to such extent. See Reonal v. Brown, 4 Vet. App. 458 (1993). Further, an opinion is inadequate when, as indicated here, the examiner does not consider the veteran's medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Moreover, the Board notes that the Veteran is competent to report the onset and progression of symptomatology, as well as the treatment thereof, and an opinion based on the absence of treatment records without consideration of competent lay reports is inadequate. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). The July 2022 examiner also opined that the Veteran's right hip condition was less likely than not caused or aggravated by his service-connected foot conditions. In support of these opinions, the examiner noted that there was no direct pathophysiologic relationship between the conditions. See July 2022 VA Hip Medical Opinion DBQ. However, the examiner did not otherwise elaborate in support of the conclusion that there was no direct pathophysiologic relationship between the Veteran's right hip condition and his bilateral foot conditions, or in support of their implied conclusion that the lack of such direct relationship precluding a finding that his right hip condition was caused or aggravated by his bilateral foot conditions. As such, the Board finds this to be conclusory and, therefore, inadequate. See Stefl v. Nicholson, supra; Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). For these reasons, the Board finds the July 2022 opinions, and the November 2022 addendum thereto, to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed right hip condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, the Board finds that this issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert (IME) is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, multiple VA opinions have been unable to adequately answer the question of the nature and etiology of the Veteran's claimed right hip condition. The AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. 2. Entitlement to service connection for a neck condition, to include as secondary to service-connected bilateral foot conditions and back conditions, is remanded. 3. Entitlement to service connection for a right elbow condition, to include CTS and cervical radiculopathy, is remanded. The Board regrets the delay associated with this remand, particularly given the lengthy procedural history. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the AOJ to conduct additional development. Specifically, a remand is necessary to allow the AOJ to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed neck condition. In July 2022, the Veteran underwent a VA examination in which the examiner noted a diagnosis of degenerative disc disease with bilateral radiculopathy. Ultimately, the examiner opined that the Veteran's diagnosed neck condition was less likely than not related to his active duty service or caused by a service-connected condition. In support of this opinion, the examiner stated that the Veteran was in an automobile accident in July 2009, and that the Veteran's private records showed that he experienced pain and stiffness in his neck as a result of such accident. See July 2022 VA Neck Conditions DBQ; July 2022 VA Neck Medical Opinion DBQ. However, the examiner did not otherwise elaborate in support of the conclusion that the Veteran's involvement in a post-service automobile accident which resulted in neck pain and stiffness precluded a finding that his neck condition was related to his active duty service or caused by a service-connected condition. As such, the Board finds this to be conclusory and, therefore, inadequate. See Stefl v. Nicholson, supra; Nieves-Rodriquez v. Peake, supra. In November 2022, the examiner provided an addendum opinion, in which they opined that the Veteran's neck condition was less likely than not caused by his service-connected back condition. In support of this opinion, the examiner cited Wheeless' Textbook of Orthopedics for the proposition that the was no clear evidence in the orthopedic literature to suggest an injury to one joint would not have any significant impact on another or opposite uninjured joint unless the injury resulted in major muscle or nerve damage or shortening of the limb resulting in an altered gait; the examiner noted that such level of severity was not supported by the evidence of record. The examiner also cited Oxford's Textbook on Orthopedics and Trauma for the proposition that, while it is not unusual for two joints to share properties in the same person, one joint's disease does not spread to another or cause damage to it. See November 2022 VA Addendum DBQ. However, the examiner did not cite the specific articles, or chapters, from such textbooks on which they relied. Additionally, the examiner did not elaborate as to how such articles, which appear to address injuries to the extremities, apply to the Veteran's neck and back conditions. As such, the Board finds this to be conclusory and, therefore, inadequate. See Stefl v. Nicholson, supra; Nieves-Rodriquez v. Peake, supra. Further, though the examiner noted that the Veteran's service-connected conditions were not severe enough to result in major muscle or nerve damage or an altered gait, the record indicates that the Veteran's back condition manifests with an antalgic gait. See October 2015 VA Back Conditions DBQ. Moreover, the Veteran's service-connected conditions include bilateral lower extremity radiculopathy, which is a nerve condition. As such, the opinion appears to be based on an inaccurate factual premise and, therefore, is inadequate. See Reonal v., Brown, supra. Further, an opinion is inadequate when, as indicated here, the examiner does not consider the veteran's prior medical history. See Stefl v. Nicholson, supra. The examiner also opined that the Veteran's neck condition was less likely than not aggravated by his service-connected back conditions. In support of this opinion, the examiner stated that the two conditions are not medically related and that one does not affect the other. See November 2022 VA Addendum Opinion. However, the examiner did not otherwise elaborate in support of this conclusion. As such, the Board finds this to be conclusory and, therefore, inadequate. See Stefl v. Nicholson, supra; Nieves-Rodriquez v. Peake, supra. For these reasons, the Board finds the July 2022 opinions, and the November 2022 addendum thereto, to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed right hip condition. See Barr v. Nicholson, supra. Further, the Board finds that this issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert (IME) is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, multiple VA opinions have been unable to adequately answer the question of the nature and etiology of the Veteran's claimed right hip condition. The AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. Lastly, with respect to the Veteran's claim of entitlement to service connection for a right elbow condition, the Board notes that the Veteran has been diagnosed with cervical radiculopathy. See July 2022 VA Elbow and Forearm Conditions DBQ. As such, the Board finds the issue to be inextricably intertwined with the Veteran's claim of entitlement to service connection for a neck condition. Therefore, a remand is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 4. Entitlement to service connection for a TBI is remanded. The Board regrets the delay associated with this remand, particularly given the lengthy procedural history. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the AOJ to conduct additional development. Specifically, a remand is necessary to allow the AOJ to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed TBI. In July 2019, the Veteran underwent a VA examination in which the examiner ultimately concluded that the Veteran did not have a diagnosis of a TBI. In support of this conclusion, the examiner noted that there was no evidence in the medical records of a head injury, and the Veteran had undergone two prior evaluations for PTSD, both of which had noted that the Veteran did not have a diagnosis of TBI. See July 2019 Initial Evaluation of Residuals of TBI DBQ. However, as discussed in the November 2022 Memorandum Decision, the Veteran underwent a TBI consult in September 2009 in which he reported experiencing five blast injuries during service, a loss of consciousness, an episode of disorientation or confusion, and a period of posttraumatic amnesia. Ultimately, the examining practitioner noted that the Veteran's findings were consistent with a diagnosis of TBI. See Battle Creek VAMC records. As such, the opinion appears to be based on an inaccurate factual premise and, therefore, is inadequate. See Reonal v., Brown, supra. Further, an opinion is inadequate when, as indicated here, the examiner does not consider the veteran's prior medical history. See Stefl v. Nicholson, supra. Given the above, the Board finds the July 2019 opinion to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed TBI. See Barr v. Nicholson, supra. Further, the Board finds that this issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert (IME) is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, multiple VA opinions have been unable to adequately answer the question of the nature and etiology of the Veteran's claimed TBI. The AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. 5. Entitlement to SMC based on the need for regular aid and attendance is remanded. 6. Entitlement to a certificate of eligibility for an automobile allowance is denied. 7. Entitlement to a certificate of eligibility for SAH is remanded. 8. Entitlement to a certificate of eligibility for an SHA grant is remanded. The Board regrets the delay associated with this remand, particularly given the lengthy procedural history. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the AOJ to afford the Veteran with an examination as the record is unclear as to the extent to which the Veteran's service-connected conditions require the regular aid and attendance of another person or result in loss of use of the upper or lower extremities, affect the functions or balance and propulsion, or preclude locomotion without the aids of braces, crutches canes, or a wheelchair. Specifically, in August 2021, the Veteran underwent an in-home functional assessment in which he reported that he sometimes requires assistance with washing his feet, requires his spouse to put his pants, shoes, and socks on, and that his spouse must clean him after he soils himself two to three times per month. The Veteran also reported that he used a back brace but did not provide information regarding the frequency of such use. However, the Veteran's spouse reported that the Veteran is totally independent with bathing needs and toileting, that she only assisted with dressing sometimes when the Veteran's back was hurting, and that she was unaware the Veteran had a back brace. See Central Alabama VAHCS records. Given the above, the Board finds that the record is unclear as to the extent to which the Veteran's service-connected conditions require the regular aid and attendance of another person or result in loss of use of the upper or lower extremities, affect the functions or balance and propulsion, or preclude locomotion without the aids of braces, crutches canes, or a wheelchair. Therefore, a remand is necessary to afford the Veteran with an examination to assess the severity of, and functional limitations caused by, his relevant service-connected conditions. Lastly, the Board finds the issues of entitlement to SMC, an automobile allowance, SAH, and an SHA grant to be inextricably intertwined with the claims remanded herein. Therefore, a remand is required. See Harris v. Derwinski, supra. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the claims file any outstanding pertinent medical records, whether VA or private, to include records relating to treatment within Central Alabama VAHCS from December 2022 to current, as well as ALL documents contained within Vista Imaging. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, obtain an advisory medical opinion from an INDEPENDENT MEDICAL EXPERT, SPECIALIZING IN ORTHOPEDICS, PURSUANT TO 38 U.S.C. § 5109 AND 38 C.F.R. § 3.328, regarding the nature and etiology of the Veteran's claimed right hip condition. The AOJ must follow its established procedures for requesting such an advisory opinion FURNISHED BY A MEDICAL SCHOOL, UNIVERSITY, OR CLINIC. The entire claims file must be provided to, and reviewed by, the physician. If the physician determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The physician is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) For each diagnosed right hip condition, opine as to: i. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. ii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition was caused by a service-connected condition, to include the Veteran's service-connected foot conditions. iii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition underwent an incremental increase (aggravated), regardless of permanence, due to a service-connected condition, to include the Veteran's service-connected foot conditions. " 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. Moreover, any incremental increase in disability need not be permanent. " The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is at least approximately balanced, or nearly equal, and therefore it is at least as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. " Any opinion expressed by the physician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the physician should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. " The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. " The physician is also advised that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 3. After completing the development in Section One above, and any additional development warranted by the record, obtain an advisory medical opinion from an INDEPENDENT MEDICAL EXPERT, SPECIALIZING IN ORTHOPEDICS, PURSUANT TO 38 U.S.C. § 5109 AND 38 C.F.R. § 3.328, regarding the nature and etiology of the Veteran's claimed neck condition, The AOJ must follow its established procedures for requesting such an advisory opinion FURNISHED BY A MEDICAL SCHOOL, UNIVERSITY, OR CLINIC. The entire claims file must be provided to, and reviewed by, the physician. If the physician determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The physician is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) For each diagnosed neck condition, opine as to: i. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. ii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition was caused by a service-connected condition, to include the Veteran's service-connected back and foot conditions. iii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition underwent an incremental increase (aggravated), regardless of permanence, due to a service-connected condition, to include the Veteran's service-connected back and foot conditions. " 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. Moreover, any incremental increase in disability need not be permanent. " The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is at least approximately balanced, or nearly equal, and therefore it is at least as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. " Any opinion expressed by the physician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the physician should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. " The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. " The physician is also advised that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 4. After completing the development above, and any additional development warranted by the record, obtain an advisory medical opinion from an INDEPENDENT MEDICAL EXPERT, SPECIALIZING IN ORTHOPEDICS OR NEUROLOGY, PURSUANT TO 38 U.S.C. § 5109 AND 38 C.F.R. § 3.328, regarding the nature and etiology of the Veteran's claimed right elbow condition, The AOJ must follow its established procedures for requesting such an advisory opinion FURNISHED BY A MEDICAL SCHOOL, UNIVERSITY, OR CLINIC. The entire claims file must be provided to, and reviewed by, the physician. If the physician determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The physician is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) For each diagnosed right elbow condition, to include CTS and cervical radiculopathy, opine as to: i. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. ii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition was caused by a service-connected condition, to include any neck condition found to be related to service, or caused or aggravated by a service-connected condition, above. iii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition underwent an incremental increase (aggravated), regardless of permanence, due to a service-connected condition, to include any neck condition found to be related to service, or caused or aggravated by a service-connected condition, above. " 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. Moreover, any incremental increase in disability need not be permanent. " The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is at least approximately balanced, or nearly equal, and therefore it is at least as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. " Any opinion expressed by the physician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the physician should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. " The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. " The physician is also advised that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 5. After completing the development in Section One above, and any additional development warranted by the record, obtain an advisory medical opinion from an INDEPENDENT MEDICAL EXPERT, SPECIALIZING IN NEUROLOGY, PURSUANT TO 38 U.S.C. § 5109 AND 38 C.F.R. § 3.328, regarding the nature and etiology of the Veteran's claimed right hip condition, The AOJ must follow its established procedures for requesting such an advisory opinion FURNISHED BY A MEDICAL SCHOOL, UNIVERSITY, OR CLINIC. The entire claims file must be provided to, and reviewed by, the physician. If the physician determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The physician is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) Address the following: i. Whether the Veteran has a TBI or TBI residuals. In providing a diagnosis, identify, if applicable, residual symptoms the Veteran experiences, including, but not limited to, dizziness, vertigo, or impaired cognitive function or memory. ii. If so, opine as to whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that the TBI had its onset during, or is otherwise related to, the Veteran's active duty service. (c.) In formulating the requested opinions, the examiner is asked to specifically consider and address the September 2009 TBI consult at Battle Creek VAMC, noting that the findings therein were consistent with a diagnosis of TBI. " The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is at least approximately balanced, or nearly equal, and therefore it is at least as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. " Any opinion expressed by the physician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the physician should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. " The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. " The physician is also advised that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 6. After completing the development above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician regarding the severity of the Veteran's service-connected conditions and the impact of such conditions upon his activities of daily living for the purpose of determining his eligibility for SMC based on the need for regular aid and attendance, an automobile allowance, SAH, and an SHA grant. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history. If the examiner describes flare-ups of any service-connected disability, the examiner must elicit information regarding the severity, frequency, and duration thereof. (b.) Provide a full description of the Veteran's service-connected conditions and indicate the extent to which such conditions: result in loss of use of the upper or lower extremities; preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; and/or affect the functions of balance and propulsion. (c.) Opine as to whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that the Veteran's service-connected conditions result in disability (physical or mental) requiring the regular aid and attendance of another person to perform the daily activities of living, such as: dressing and undressing; keeping himself ordinarily clean and presentable; feeding; attending to the wants of nature; or protecting him from hazards or dangers incident to his daily environment. " The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is at least approximately balanced, or nearly equal, and therefore it is at least as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. " Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. " The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 7. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.