Citation Nr: 1756957 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 09-50 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G.C., Associate Counsel INTRODUCTION The Veteran served on active duty from September 2000 to September 2004. His awards and decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision of the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was scheduled to testify at a personal hearing before a member of the Board in October 2010, but he failed to appear, and confirmed in February 2011 that he no longer desired to appear at a hearing. Consequently, the request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702 (d) (2017). In August 2012, the Board remanded the claim for further development, to include gathering of records and scheduling of VA examinations to assess the nature and etiology of the Veteran's claimed disabilities. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. Unfortunately, the Board finds that further development is necessary regarding the Veteran's claims for entitlement to service connection for a right ankle disability, a left ankle disability, a right knee disability and a right shoulder disability. The Veteran claims that he suffers from a bilateral ankle disability due to an injury and physical demands in service. A VA examination in July 2016 took note that the Veteran's service treatment records reflected in-service treatment for an ankle injury, but stated that there was no current disability. However, the same VA examination found restricted range of motion bilaterally, pain on motion bilaterally, interference with such activities as standing bilaterally, and noted an imaging study which showed a calcification in the left lateral malleolus which "may be the sequela of remote injury." Yet, the examiner concluded not only that there is no diagnosed ankle condition to provide the basis for service connection, but also that the Veteran's complaints are essentially discounted due to their subjective nature. The Veteran also claims he has a right knee disability which he incurred while in service. Indeed, he was afforded a VA examination in July 2016, and a diagnosis of patellofemoral pain syndrome was confirmed. However, the examiner opined that it is less likely than not that the Veteran's right knee disability was either incurred in service or caused by his service-connected left knee disability. The examiner's rationale was that "patellofemoral syndrome is not a compensatory condition caused by a contralateral joint condition." However, the examiner did not provide an adequate rationale as to direct service connection or as to secondary service connection on an aggravation basis and, again, did not explain why the Veteran's lay statements were discounted. The Veteran further claims he has had a right shoulder disability since service. He is already service-connected for a left shoulder disability. The Veteran was afforded a VA examination in July 2016 to assess the nature and etiology of his right shoulder condition. The examiner confirmed a diagnosis of bicipital tendonitis of the right shoulder, bilateral rotator cuff tendonitis and bilateral acromioclavicular joint osteoarthritis. The Board notes that a review of the Veteran's VA and private medical records as well as his lay statements shows a consistency in his complaints about his right shoulder. Specifically, the Veteran has consistently reported a shoulder injury while doing pullups in service, and has consistently reported that he has had no other injuries to his shoulder. The examiner opined, however, that it is less likely than not that the Veteran's right shoulder disability was the result of his in-service activities. The rationale offered was that the Veteran's service treatment records and post-service treatment records are silent as to any complaints of right shoulder problems until 2009. However, the examiner did not discuss whether the Veteran's service-connected left shoulder disability aggravated (worsened) his right shoulder disorder, did not discuss the etiology of the Veteran's diagnosed shoulder arthritis and tendonitis, and did not indicate a reason why the Veteran's lay accounts were being discounted. 38 C.F.R. § 3.310 (b). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that the Veteran should be afforded VA addendum opinions that address the medical matters raised by these issues. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file any outstanding VA and private treatment records. 2. Forward the Veteran's claims folder to an orthopedist to provide addendum opinions regarding the Veteran's bilateral ankle, right knee, and right shoulder claims. The examiner is requested to review the claims folder, to include this remand. a. Bilateral ankles- Following review of the claims file the examiner must provide a diagnosis of any right or left ankle disorder found to be present. For each such disorder diagnosed, the examiner must provide opinions on the following: * Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed right and left ankle disorder had its onset during the Veteran's active service or is otherwise causally related to his service. * Whether it is at least as likely as not (a probability of 50 percent or greater) that any currently diagnosed ankle disabilities are caused by any service-connected disability. * Whether it is at least as likely as not (a probability of 50 percent or greater) that any currently diagnosed ankle disabilities are aggravated by any service-connected disability. The examiner is asked to specifically address the claimed lack of a diagnosis and the substantial symptomatology of record. The examiner is further asked to address the pertinent lay statements of record, and if they are being discounted, to explain why. b. Right knee- Following review of the claims file the examiner must provide opinions on the following: * Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's right knee disability had its onset during active service or is otherwise causally related to his service. * Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's right knee disability is caused by any service-connected disability. * Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's right knee disability is aggravated by any service-connected disability. The examiner is asked to address the pertinent lay statements of record, and if they are being discounted, to explain why. c. Right shoulder- Following review of the claims file the examiner must provide opinions on the following: * Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's right shoulder disorder had its onset during the Veteran's active service or is otherwise causally related to his service. * Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's right shoulder disability is caused by any service-connected disability. * Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's right shoulder disability is aggravated by any service-connected disability. The examiner is asked to address the pertinent lay statements of record, and if they are being discounted, to explain why. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The AOJ should review the case in detail. After completing the above actions, and any other indicated development, the Veteran's claims must be re-adjudicated. If any of the benefits remain denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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. §§ 5109B, 7112 (2012). _________________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).