Citation Nr: 1752356 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-03 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include anxiety, unspecified depressive disorder, and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a bilateral eye disability, to include pinguecula, myopia, and astigmatism. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to service connection for a left shoulder disability. 5. Entitlement to service connection for a right knee disability, to include chondromalacia patella and patellofemoral pain syndrome and to include as secondary to service-connected tibial stress fractures. 6. Entitlement to service connection for a left knee disability, to include patellofemoral pain syndrome and to include as secondary to service-connected tibial stress fractures. 7. Entitlement to service connection for a lumbar spine disability, to include degenerative scoliosis and to include as secondary to right and left knee disabilities and as secondary to service-connected tibial stress fractures. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Shouman, Associate Counsel INTRODUCTION The Veteran honorably served on active duty in the United States Marine Corps from February 2002 to February 2007. He was awarded the Navy Unit Commendation and the Navy Meritorious Unit Commendation. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for myopia and astigmatism (claimed as vision loss), right knee pain, left knee patellofemoral pain syndrome, back pain, a left shoulder disability, right shoulder pain; and anxiety/paranoia. The Board considered the appeal in June 2016. At that time, the claims of service connection for PTSD and unspecified depressive disorder were reopened and all matters listed above were remanded for additional development. With respect all claims except that for an acquired psychiatric disorder, the Board finds there has been substantial compliance with its June 2016 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of Stegall v. West, 11 Vet. App. 268 (1998) when the examiner made the ultimate determination required by the Board's remand) aff'd, 287 F.3d 1377 (2002). For example, in furtherance of the Board's remand instructions, VA asked the Veteran to furnish appropriate authorizations for the release of outstanding private medical records, obtained outstanding VA medical treatment records, and scheduled the Veteran for VA examinations to determine the nature and etiology of his eye, shoulder, knee, and spinal disabilities. The claim was then readjudicated in March 2017. The appellant testified before the undersigned Veterans Law Judge at a March 2016 videoconference hearing. A hearing transcript has been associated with the claims file and reviewed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND With respect to the claim of service connection for an acquired psychiatric disorder, the AOJ failed to substantially comply with the Board's February 2015 remand directives. As such, an additional remand is necessary before the Board can adjudicate the issue. See Stegall, 11 Vet. App. at 271 (where the remand orders of the Board are not complied with, . . . ensure compliance); see also Dyment, 13 Vet. App. at 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required). The Board also finds that additional development is necessary before it can adjudicate the other issues on appeal. With respect to the issue of entitlement to service connection for an acquired psychiatric disorder, the June 2016 Board remand instructed the AOJ to prepare a letter asking the U.S. Army and Joint Services Records Research Center (JSRRC) to provide information that might corroborate in-service stressors identified by the Veteran, particularly that of a plane crash / wheels up landing involving VMA 542 at Cherry Point, North Carolina. To date, no attempt to obtain such records from the JSRRC are of record. Accordingly, such an attempt must be made and reflected in the record, and an addendum is necessary in order for a VA psychologist to consider all the Veteran's reported stressors and all psychological records during the period of the claim. With respect to the issue of entitlement to service connection for a bilateral eye disability, the Board notes that the Veteran indicated undergoing an annual eye examination. 03/25/2016, VBMS entry, Hearing Testimony, at 4. The record does not reflect such annual eye examinations, and attempts to obtain those annual eye examination records are not of record. Therefore, efforts should be made to locate them, and if unsuccessful it should notify the Veteran so. With respect to the issues of entitlement to service connection for right and left shoulder disabilities, the Veteran reports pain in his shoulders and that the injuries began during physical training in service. 03/25/2016, VBMS entry, Hearing Testimony, at 14. While the evidence is insufficient to grant service connection, competent evidence of the Veteran's right and left shoulder pain, coupled with his reports of in-service shoulder injury, does indicate a possible relationship such that VA should provide an opinion in this case. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). With respect to the issues of entitlement to service connection for right and left knee disabilities, the June 2016 Board remand instructed the AOJ to schedule a VA examination to determine if there is a nexus between any knee disability and service and if there is a nexus between any knee disability and the Veteran's service-connected tibial stress fractures. Subsequently, an examination was scheduled in February 2017. 02/27/2017, VBMS entry, C & P Examination (DBQ MUSC Knee & Lower Leg). The February 2017 VA examiner opined that it is less likely than not that either of those disabilities were incurred in or due to the Veteran's active military service or related to his tibial stress fractures because the Veteran does not have a knee disability. 02/27/2017, VBMS entry, C & P Examination (DBQ Medical Opinion - Knee, Spine). However, the VA examiner did not consider the July 2015 VA examination diagnosing the Veteran with bilateral patellofemoral pain syndrome and chondromalacia patella in the right side. 08/12/2015, VBMS entry, C & P Examination, at 3. In light of this, the Board finds that the December 2016 VA examination is not adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that the Board had erred in failing to ensure a VA examination was adequate). With respect to the issue of entitlement to service connection for a lumbar spine disability, to include as secondary to left and right knee disabilities, the matter is remanded because it is intertwined with the knee claims. Additionally, on remand, any other outstanding, pertinent VA treatment records should be obtained. Accordingly, the case is REMANDED for the following actions: (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 file any outstanding, pertinent VA treatment records, particularly to include all annual eye examination records. Moreover, notify the Veteran that he may submit VA Forms 21-4142 to authorize any private medical provider, including any he has had annual eye examinations with, to disclose and release to VA information on his treatment, and then request those medical records from the private medical providers. As many attempts should be made as necessary to obtain those records, to include requesting a specific negative response if no records are located. The appellant is to be notified of any unsuccessful effort to obtain outstanding VA and private testament records in order to allow the appellant the opportunity to obtain and submit those records for VA review. Additionally, notify the appellant that he may submit any relevant VA and private treatment records in his possession to VA. 2. Prepare a letter asking the JSRRC to provide any available information that might corroborate the in-service stressors identified by the Veteran, particularly that of a plane crash / wheels up landing involving VMA 542 at Cherry Point, North Carolina . 3. If and only if stressor verification is achieved as a result of the above development, then, request the VA psychologist who conducted the February 2017 psychological examination to review the claims file. If the February 2017 VA psychologist is unavailable, then another appropriate clinician should be requested to review the claims file. The clinician is asked to review the claims file to become familiar with the pertinent medical history. If the clinician finds it necessary to conduct a new examination, then schedule such an examination for the Veteran. After reviewing the claims file (and conducting an additional examination, if necessary), the clinician is to address the following: a. Is any acquired psychiatric disorder shown or treated at any time during the claim period (from June 2010 to the present), to include anxiety, unspecified depressive disorder, and PTSD at least as likely as not (50 percent or greater probability) related to active service? If not, does the record at least as likely as not (50 percent or greater probability) show that any psychoses disorders manifested within one year of the Veteran's separation from service in February 2007? b. If the Veteran met the criteria for a PTSD diagnosis at any time during the claim period (from June 2010 to the present), please identify the stressors upon which the diagnosis is based. c. Consider all lay and medical evidence, including the January 2013 VA examination and VA treatment records reflecting continued treatment for depression. 4. After all development has been completed and returned from step 1 above, request the VA eye examiner who conducted the February 2017 eye examination to review the claims file. If the February 2017 VA eye examiner is unavailable, then another appropriate clinician should be requested to review the claims file. The clinician is asked to review the claims file to become familiar with the pertinent medical history. If the clinician finds it necessary to conduct a new examination, then schedule such an examination for the Veteran. After reviewing the claims file (and conducting an additional examination, if necessary), the clinician is to address the following: a. Is any eye disability shown or treated at any time during the claim period (from June 2010 to the present) at least as likely as not (50 percent or greater probability) related to active service, to include due to fuel splashing into the Veteran's eyes? If not, does the record at least as likely as not (50 percent or greater probability) show that any eye disability manifested within one year of the Veteran's separation from service in February 2007? If the eye disabilities are identified as refractive error or otherwise are congenital in nature, please specify whether it is a congenital defect or disease. If a disease, was it aggravated by any incident in service? If a defect, is there any superimposed disability as a result of service? If so, please identify the nature of the superimposed disability. Consider all lay and medical evidence, to include the February 2017 VA eye examination, any annual eye examinations, and the Veteran's statements regarding loss of vision in service. Provide a clear and comprehensive rationale for any conclusions. If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. 5. After all development has been completed and returned from step 1 above, schedule the Veteran for an examination of his right and left shoulders. (If the Veteran fails to report to the examination, then have an appropriately qualified VA examiner answer the questions below.) The examiner is asked to review the claims file to become familiar with the pertinent medical history before providing a medical opinion on the following: a. Is any shoulder disability shown or treated at any time during the claim period (from June 2010 to the present) at least as likely as not (50 percent or greater probability) related to active service, to include due to intensive physical activity from training? If not, does the record at least as likely as not (50 percent or greater probability) show that arthritis of the shoulders manifested within one year of the Veteran's separation from service in February 2007? Consider all lay and medical evidence, to include the Veteran's statements intensive physical activity in service. Provide a clear and comprehensive rationale for any conclusions. If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. 6. After all development has been completed and returned from step 1 above, request the VA examiner who conducted the February 2017 VA knee and spine examination to review the claims file. If the February 2017 VA knee and spine examiner is unavailable, then another appropriate clinician should be requested to review the claims file. The clinician is asked to review the claims file to become familiar with the pertinent medical history. If the clinician finds it necessary to conduct a new examination, then schedule such an examination for the Veteran. After reviewing the claims file (and conducting an additional examination, if necessary), the clinician is to address the following: a. Is any knee disability shown or treated at any time during the claim period (from June 2010 to the present) at least as likely as not (50 percent or greater probability) related to active service, to include doing load bearing running? If not, does the record at least as likely as not (50 percent or greater probability) show that any knee arthritis manifested within one year of the Veteran's separation from service in February 2007? b. Is any knee disability shown or treated at any time during the claim period (from June 2010 to the present) at least as likely as not (50 percent or greater probability) caused by the Veteran's service-connected tibial stress fractures? c. Has any knee disability shown or treated at any time during the claim period (from June 2010 to the present) at least as likely as not (50 percent or greater probability) been aggravated by the Veteran's service-connected tibial stress fractures? If aggravation is found, provide baseline levels of the knee disability prior to aggravation. d. Is any spinal disability shown or treated at any time during the claim period (from June 2010 to the present) at least as likely as not (50 percent or greater probability) related to active service? If not, does the record at least as likely as not (50 percent or greater probability) show that any arthritis of the spine manifested within one year of the Veteran's separation from service in February 2007? e. Is any spinal disability shown or treated at any time during the claim period (from June 2010 to the present) at least as likely as not (50 percent or greater probability) caused by the Veteran's service-connected tibial stress fractures? f. Has any spinal disability shown or treated at any time during the claim period (from June 2010 to the present) at least as likely as not (50 percent or greater probability) been aggravated by the Veteran's service-connected tibial stress fractures? If aggravation is found, provide baseline levels of the spinal disability prior to aggravation. g. Is any spinal disability shown or treated at any time during the claim period (from June 2010 to the present) at least as likely as not (50 percent or greater probability) caused by the Veteran's bilateral knee disability? h. Has any spinal disability shown or treated at any time during the claim period (from June 2010 to the present) at least as likely as not (50 percent or greater probability) been aggravated by the Veteran's bilateral knee disability? If aggravation is found, provide baseline levels of the spinal disability prior to aggravation. Consider all lay and medical evidence, to include the February 2017 VA knee and spine examination, the March 2016 VA and private examinations (03/25/2016, VBMS entry, VA Examination; 03/25/2016, VBMS entry, Medical Treatment Record - Non-Government Facility), and the Veteran's statements regarding the onset of knee pain during service. Provide a clear and comprehensive rationale for any conclusions. If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. 7. After all development has been completed and returned from all steps above, if any benefit sought remains denied, then issue a supplemental statement of the case with consideration to all pertinent evidence, and return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and arguments on matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam). Remanded claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the U.S. Court of Appeals for Veterans Claims (CAVC) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.S. § 7252, only a Board decision is appealable to the CAVC. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits. 38 C.F.R. § 20.1100(b) (2017).