Citation Nr: 1753914 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 09-38 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a bilateral shoulder disorder. 2. Entitlement to service connection for a bilateral ankle disorder. 3. Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1979 to March 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. These matters were most recently remanded by the Board in February 2017 for further evidentiary development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran served as a U.S. Army paratrooper with a significant history of parachute jumps. He contends that he has degenerative or traumatic arthritis of the knees, feet and shoulders caused by the stress or joint trauma sustained in the jumps. In its February 2017 Remand, the Board found previously issued July 2014 VA medical opinions with respect to these issues to be inadequate, in part because the supporting rationale relied almost entirely on the lack of continuity of care since service. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records does not by itself refute the credibility of the Veteran's assertions). Pursuant to the Board's remand, June 2017 VA medical opinions were obtained. A VA physician acknowledged the history of parachute jumps and cited some occasions of acute treatment of ankle sprains and foot injuries. A review of these opinions shows that the examiner's rationale is almost entirely based upon the lack of treatment records since the Veteran's separation from service. In addition, the February 2017 Board Remand directed the examiner to discuss the impact of the Veteran's documented in-service parachute jumps on his claimed disorders. The examiner stated simply that "he had no significant injury from jumps." The Board finds the June 2017 VA medical opinions to be noncompliant with the Board's Remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where remand orders of the Board are not followed, the Board errs as a matter of law when failing to ensure compliance). Specifically, the examiner's rationale focused almost entirely on the lack of post-service treatment. In addition, to be consistent with the Veteran's contention, the examiner should discuss the cumulative impact of approximately 200 in-service jumps as repetitive joint stress that may not have required treatment or only acute treatment at the time and whether it caused the development of the current degenerative disorders in this Veteran's case. A discussion of the relevant medical research on the development of joint disease from repetitive stress or trauma and its applicability in this Veteran's case is necessary to decide the claim. As a result, new medical opinions are appropriate. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to a VA examiner of appropriate knowledge and expertise to determine the etiology of the Veteran's claimed bilateral shoulder, bilateral feet, and bilateral ankle disorders. It is up to the discretion of the examiner if a new VA examination is necessary, or in the alternative, an addendum opinion is sufficient. Based on a review of the claims file and the clinical findings of any examination(s), the examiner is asked to provide a medical opinion as to: (a) Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any diagnosed bilateral shoulder disorder is causally or etiologically related to the Veteran's service. (b) Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any diagnosed bilateral ankle disorder is causally or etiologically related to the Veteran's service. (c) Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any diagnosed bilateral foot disorder is causally or etiologically related to the Veteran's service. In rendering an opinion, the examiner should discuss the cumulative effect of repeated jumps in addition to any specific in-service injuries. The examiner(s) is reminded that the lack of contemporaneous medical records does not by itself refute the credibility of the Veteran's assertions. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Note that the lack of documented treatment in service or post-service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between service and any currently diagnosed conditions. A discussion of the relevant medical research on the development of joint disease from repetitive stress or trauma and its applicability in this Veteran's case is necessary to decide the claim. A complete rationale for all opinions is required. If an opinion cannot be expressed without resort to speculation, the physician should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and 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 matter or 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). _________________________________________________ J. W. FRANCIS 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) (2016).