Citation Nr: 1601691 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 07-04 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral shin splints. 2. Entitlement to service connection for a generalized anxiety disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran had active service from July 2002 to January 2003 and February 2003 to April 2004. The Veteran also served in the National Guard. These matters initially came to the Board of a Veterans' Appeals (Board) from a September 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran appeared at a travel board hearing in February 2011 before the undersigned. A transcript of the hearing is associated with the claims file. This case was previously before the Board in January 2011, October 2013, and June 2014. This case is contained in an electronic claims file on the Veterans Benefits Management System. Additional relevant records are located in Virtual VA. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the Board's June 2014 remand, it specifically pointed out that the previous VA opinions had failed to properly address the Board's questions relating to the etiology of her claimed disabilities. For the following reasons, the questions presented in the June 2014 Board remand have not been properly addressed, and these issues must once again be remanded. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers on the appellant, as a matter of law, the right to compliance with the remand instructions.). The December 2011 VA examiner found that the Veteran did not have a shin splint disability that was incurred in service because bone scans had been negative for any shin splints or stress fractures. Both the October 2013 and June 2014 Board remands specifically pointed out that the Veteran's service treatment records contained a November 2002 bone scan which indicated shin splints and requested that this treatment record be addressed. Despite providing two separate addendum opinions in November 2013 and July 2014, the nurse practitioner who performed the December 2011 VA examination has not addressed this record. Given these circumstances, the claim will again be remanded to obtain a new VA examination and opinion from a different VA examiner, specifically, an appropriate specialist physician, to provide an adequate response to the questions below. Additionally, the Veteran's representative has argued that she may have a diagnosis pertaining to persistent pain of the lower leg other than shin splints, and that such a disorder would also be encompassed by the current claim on appeal. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim is not limited to the terminology used by the claimant, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). This should also be addressed by the VA examiner following examination. The Board also finds that a new VA opinion should be obtained regarding the Veteran's claim of entitlement to service connection for a generalized anxiety disorder. In the June 2014 remand, the Board requested an addendum opinion to address whether any current psychiatric disorder other than PTSD was related to the Veteran's claimed in-service event of witnessing the death of a child while on convoy and to "specifically address each of the Veteran's reports of symptoms of depression/excessive worry, nervous trouble and trouble sleeping in her March 2004 separation report of medical history." While the examiner provided a January 2015 addendum opinion discussing the claimed in-service event and the Veteran's current life stressors, the examiner did not address the March 2004 symptoms at all. Therefore, this opinion is also inadequate, and the Board requests a new VA opinion from a different, but similarly qualified examiner. The Veteran has previously sought VA outpatient care. On remand, updated records should be obtained from VA. Accordingly, the case is REMANDED for the following action: 1. Obtain treatment records from the Birmingham VA Medical Center since June 2014 and the Tuscaloosa VA Medical Center since February 2014. 2. Schedule the Veteran for a VA examination with a physician specializing in orthopedics or other appropriate field in order to address the nature and etiology of any current shin splints disability. All indicated, relevant tests should be completed, including a bone scan if deemed necessary, and the examiner must be provided access to all records in Virtual VA and VBMS and specify in the report that all records have been reviewed. The examiner is then asked to address the following: a) What are the Veteran's current diagnoses pertaining to the lower legs? Please discuss the Veteran's reports that she currently has pain and mobility problems in her lower legs. b) For every diagnosis found, is it at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset during or is otherwise related to any event during service? In providing this opinion, the examiner must discuss the Veteran's service treatment records, including: i) August and September 2002 treatment for shin splints; ii) November 2002 bone scan showing "Findings in the tibiae bilaterally suggesting trauma due to periosteal avulsion (shin splints)" and diagnosis of shin splints/stress fractures; iii) February 2003 physician's note that the Veteran did not have stress fractures but did have a history of posterior tibial tendonitis (shin splints); iv) March 2003 treatment for shin splints; v) June 2004 diagnosis of probable shin splints; as well as any other relevant treatment records from the Veteran's medical history. All opinions expressed by the examiner must be accompanied by a complete rationale, with citation to relevant medical findings. 3. Obtain an addendum medical opinion from a psychiatrist or psychologist other than the psychologist who performed the September 2012 VA examination in order to address the etiology of the Veteran's generalized anxiety disorder. The examiner must be provided access to all records in Virtual VA and VBMS and specify in the report that all records have been reviewed. If the examiner finds that an in-person examination is required prior to addressing the following question, schedule the Veteran for an appropriate examination. After reviewing the Veteran's entire medical history, the examiner is asked to address the following: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's generalized anxiety disorder had its onset during or is otherwise related to any event during service? The examiner must specifically address each of the Veteran's reports of symptoms of depression/excessive worry, nervous trouble, and trouble sleeping in her March 2004 separation report of medical history, including discussing what such symptoms signify and whether they are similar or related to her currently reported symptoms. The examiner should also specifically address whether the Veteran's anxiety disorder is related to her claimed in-service stressor of witnessing the death of a child while on convoy. All opinions expressed by the examiner must be accompanied by a complete rationale, with citation to relevant medical findings. 4. After the development requested has been completed, the AOJ should review all examination reports and opinions to ensure that they are in compliance with the directives of this REMAND. If any report is deficient in any manner, the AOJ must implement corrective procedures, including returning the report to the examiner for an addendum opinion if necessary. 5. Thereafter, the AOJ should readjudicate the claims. If any benefit sought is not granted, the appellant and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).