Citation Nr: 1642921 Decision Date: 11/08/16 Archive Date: 12/01/16 DOCKET NO. 13-06 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a bilateral ankle disability. 4. Entitlement to service connection for a respiratory disability, claimed as bronchitis. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from December 2005 to February 2006. This matter comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. On February 2, 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board remanded this appeal for further development in February 2016. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). For the reasons below, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND When VA undertakes to provide a medical examination or medical opinion, "[the Secretary] must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. The Board must ensure that the examination is adequate." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board remanded this case in February 2016 to arrange new VA examinations of the Veteran's claimed bronchitis and also her claimed disabilities of the left shoulder, ankles and knees. All of the requested examinations took place in June 2016. Unfortunately, for all of the issues on appeal, the new medical opinions do not provide all the information needed to make a decision. The case must therefore be remanded to obtain new medical opinions. Bronchitis Service treatment records indicate a diagnosis of bronchitis in February 2006. In May 2010, the Veteran was examined by a VA physician for possible respiratory disorders. After a normal pulmonary function test, the examiner found no objective evidence of bronchitis. The AOJ denied her claim for service connection for bronchitis on the grounds that the evidence did not show the existence of a current disability. In her hearing testimony, the Veteran said that her bronchitis is intermittent, rather than constant. She further testified that she is more susceptible to bouts of bronchitis since her military service. For that reason, the Board remanded the case for a new examination. The AOJ was instructed to ask the Veteran for advice about when the new examination should be scheduled, so that the examination would be more likely to take place when her bronchitis was active. In her testimony, the Veteran attributed her post-service outbreaks of bronchitis to exposure to a "gas chamber" in basic training - which is apparently part of a training exercise in which new recruits learn to use gas masks. In the Board's remand instructions, the examiner was asked "to explicitly consider and opine as to the Veteran's 2006 diagnosis of bronchitis and whether recurrent bronchitis could be linked to the exertion and gas chamber training that the Veteran reported experiencing while in service." The remand instructions also indicated that the examiner should conduct all indicated evaluations, tests and studies, including a pulmonary function test. As requested, the AOJ sent a letter to the Veteran asking for her suggestions about when the post-remand respiratory examination should be scheduled. This letter was mailed to an address in Florida, which the Veteran identified as her mailing address in her most recent prior correspondence. Nevertheless, there is some indication that the Veteran may not have received this letter. The record includes two reports of telephone conversations with the Veteran which are dated only a few weeks after letter was mailed. In the first report, the Veteran indicated uncertainty about her next address and in the second report she asked that future correspondence should be sent to a new address in Maryland. In August 2016, the Veteran wrote a statement indicating "I missed my [examination] although I had to fly out of state. I am back in [Florida.] Please reschedule my C&P . . . ." It is not precisely clear what the Veteran meant when she wrote that she missed her examination, because the AOJ did successfully arrange a new respiratory conditions examination at the VA Medical Center in Baltimore, Maryland in June 2016. But according to the report, "The Veteran resides in Florida and will be catching a flight back to Florida later today. She has no plans to be back up in this area, therefore new [pulmonary function tests] have not been ordered at this time. The Veteran had normal [pulmonary function tests] documented in VBMS from 4 May 2010." It is possible that when she wrote that she missed her examination, the Veteran was referring to a new pulmonary function test. It is not clear from the June 2016 examination report whether the examiner concluded that a new pulmonary function test because that test was not necessary or because it was not convenient to conduct the test at the Baltimore VAMC. But the reliance on the May 2010 test, when the Veteran said she was not having one of her periodic outbreaks of bronchitis, potentially frustrates the purpose of arranging an examination at one of those times. The June 2016 report also fails to discuss whether exposure to the "gas chamber" in basic training could have caused post-service outbreaks of bronchitis. When the Board remands an appeal, the claimant obtains a right to compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Due to the absence of a new pulmonary function test and the examiner's failure to discuss the Veteran's "gas chamber" testimony, it is necessary to remand the bronchitis claim for a new examination. (CONTINUED ON NEXT PAGE) Musculoskeletal Disabilities To help determine whether his claimed disabilities were related to service, the Veteran's knees, ankles and left shoulder were examined by a VA physician in May 2010. The examiner diagnosed bilateral patellofemoral pain syndrome, bilateral ankle strain and left shoulder rotator cuff syndrome. In the examiner's opinion, it was less likely than not that any of these disabilities were related to active duty. For all three of these disabilities, the examiner concluded: "The [service treatment records] do not support a history of serious injury or chronic pain associated with any of the above conditions. Therefore I find it less likely as not that the veteran's claim to left shoulder, bilateral knees and ankle conditions are the same conditions she was treated for during active duty." The May 2010 VA examiner did not provide an opinion on a theory of secondary service connection - i.e. the probability that the Veteran developed her post-service ankle, knee and left shoulder disabilities as a result of her separate service-connected spine disability. 38 C.F.R. § 3.310 (2015). For this reason, the Board remanded the shoulder, ankles and knees issues for a new examination and requested a new opinion on secondary service connection. The Veteran's knees, ankles and left shoulder were examined by a VA nurse practitioner in June 2016. For each of these disabilities, the examiner found that a causal relationship to military service was less likely than not. For each disability, the examiner provided essentially the same explanation: "There are no [service treatment records] for the [claimed condition] during service." Each of these opinions is inadequate because the absence of contemporary medical records is not, in itself, sufficient reason to reject a Veteran's lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Veteran testified that she injured her left shoulder, both knees and both ankles when she fell down during basic training in January 2006. Moreover, the examiner was incorrect in stating that there was no in-service medical treatment of the left knee and left shoulder. A left knee contusion is documented in the service treatment records and so are complaints of left shoulder pain. A medical opinion may be inadequate if it rests on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). "An adequate medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (quoting Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008)). On the issue of service connection on a secondary basis for the current left shoulder disability, the VA examiner concluded that the Veteran's left shoulder disability was not the result of her service-connected back disability. The examiner gave the following rationale for this conclusion: "There are no [service treatment records] for the Veteran's left shoulder condition until she had X-rays of the left shoulder on 7/17/10." This explanation is essentially just a repetition of examiner's opinion on the issue of direct service connection. It does not mention the service-connected back injury and, therefore, it fails to explain why the examiner believed it was unlikely that the Veteran's left shoulder condition was the secondary result of her service-connected back disability. Although the Board regrets the necessary delay, the issues in this appeal must be remanded again to obtain adequate medical opinions. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims folder copies of all records of the Veteran's VA treatment since June 2016. 2. Ask the Veteran to provide an estimated time period when she experiences flare-ups or an "active stage" of her claimed respiratory disorder. Make all reasonable efforts to schedule the Veteran for a new respiratory conditions examination during a flare-up or "active stage" of her claimed bronchitis. 3. After completing the development described above, to the extent possible, schedule the Veteran for a new respiratory conditions examination. All indicated evaluations, studies, and tests, to include a pulmonary function test, deemed necessary should be accomplished and all findings reported in detail. After examining the Veteran and reviewing the available medical records, the examiner should indicate whether it is at least as likely as not (50 percent or more probability) that the Veteran has a current respiratory disability, to include bronchitis. For the purpose of this claim, the examiner is advised that a current disability is any disability which existed when the Veteran filed his claim (October 2009) or which existed at any time during the pendency of the claim. If the examiner indicates that the Veteran has any respiratory disorder or that she had a respiratory disorder during the pendency of the claim, the examiner should further indicate whether it is at least as likely as not (50 percent or more probability) that the identified respiratory disorder had its onset during active duty service or is otherwise related to service. The examiner's report should consider and discuss the Veteran's February 2006 diagnosis of bronchitis in service and the Veteran's statements about an increase in the frequency of her bouts of bronchitis after her exposure to a "gas chamber" during basic training. A complete rationale should be provided for all opinions. 4. After completing the development described above, to the extent possible, obtain an addendum opinion from the nurse practitioner who examined the Veteran's ankles, knees and left shoulder in June 2016. If for any reason the examiner is not available, the requested opinion should be obtained from another qualified person. If it is necessary, another examination should be arranged. The examiner should be provided with copies of the Veteran's entire VA claims file, including electronic and any paper records. After reviewing the available records, the examiner should provide an opinion on the nature and etiology of any current disabilities of the Veteran's knees, ankles and left shoulder. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that each current disability of the knees, elbows or left shoulder is related to the Veteran's January 2006 in-service injury. The examiner's report should discuss the Veteran's statements that she injured her left shoulder, knees and ankles when she fell during a basic training exercise. The report should also discuss in-service medical records documenting treatment for a left knee contusion and left shoulder pain shortly after the Veteran's documented in-service back injury. The examiner should also provide an addendum opinion clarifying her statements on the probability that the current left shoulder disability is the secondary result of her in-service back injury. In her July 2016 report, the examiner indicated that such a relationship was unlikely because "There are no [service treatment records] for the Veteran's left shoulder condition until she had X-rays of the left shoulder on 7/17/10." This rationale does not mention the service-connected back disability or explain why a relationship between that disability and the Veteran's left shoulder symptoms is unlikely. The examiner should provide such an explanation in the requested addendum opinion. A complete rationale should accompany any opinion provided. 5. The AOJ must ensure that all the requested medical opinions are in compliance with the directives of this remand. If any report is deficient in any manner, the AOJ must implement corrective procedures at once. 6. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If any benefit sought is not granted, the Veteran and her representative should be furnished with a supplemental statement of the case and be afforded an opportunity to respond before the record is returned to the Board for further review. 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). This claim 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). _________________________________________________ DAVID L. WIGHT 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).