Citation Nr: 1800472 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-33 410A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for right knee disability, status post total knee replacement. 2. Entitlement to service connection for left knee disability. 3. Entitlement to service connection for bilateral shoulder disability, to include as secondary to bilateral knee disabilities. 4. Entitlement to service connection for low back disability, to include as secondary to bilateral knee disabilities. 5. Entitlement to service connection for depression, to include as secondary to bilateral knee disabilities and back disability. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Timothy Hiller, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Sanford, Counsel INTRODUCTION The appellant had active service from September 1, 1981, to December 23, 1981, for her initial period of active duty training (ACDUTRA) in the U.S. Air Force Reserves, as well as other Reserves service from July 31, 1981, to July 30, 1987. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a Board hearing via videoconference from the RO in May 2013; a hearing transcript is of record. In February 2015 and October 2015, the Board remanded this matter for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the October 2015 remand, the Board requested that several opinions be rendered. First, the examiner was to opine as to whether any knee, back, shoulder or mental health disability was incurred or aggravated by disease or injury during a period of active duty or ACDUTRA or whether any such disability was incurred or aggravated by injury during a period of inactive duty for training (IDT). Then, the examiner was to opine as to whether any back, shoulder or mental health disability was secondary to a knee disability. The examiner was to offer an explanation for each opinion provided. Such opinions were rendered in May 2017, by a VA examiner. The examiner noted several diagnosed knee disabilities, shoulder and low back disabilities. The examiner opined that it was not at least as likely as not that any knee, back or shoulder disability was incurred or aggravated by disease or injury during a period of ACDUTRA. For the knees, the examiner stated that pain began after service, "therefor [sic] not service-connected by her own admission." For the low back, the examiner stated that "[w]hile [the appellant] stated that she injured her [lumbosacral] spine there was no documentation to prove this." For the shoulders, it was stated that "[s]ince the information clearly stated that the knee pain occurred years after her [discharge] from the service then the [bilateral] shoulder strain is also not service-connect[ed]." The examiner also stated "no evidence of injury on active duty." While the examiner opined in the negative as to secondary service connection for the low back and shoulder disabilities, she offered no rationale to support that opinion. The Board finds several inadequacies with the May 2017 VA opinions. First, regarding the knees, the fact that the appellant did not report problems with her knees until after service, standing alone, is not a sufficient basis to find no nexus. At her Board hearing, the appellant attributed her knee problems to playing basketball during service and performing heavy duty work during service without proper safety equipment. The examiner did not comment on those contentions, despite the fact that the appellant may not have experienced knee problems until after service. Second, regarding the back, the fact that no back problems were noted during service alone is not a sufficient rationale. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion). Third, regarding the shoulders, the rationale is unclear. Indeed, the examiner stated that knee pain occurred after service, thus the shoulder disabilities should not be service-connected. Lastly, the examiner offered no rationale as to why secondary service connection is not warranted. Regarding depression, an addendum opinion was rendered in June 2017. The examiner attributed depressive disorder to the appellant's knee disabilities; however, the examiner did not attempt to opine as to whether there was a link between depression and the appellant's periods of service, as was requested in the Board's remand. Given the above inadequacies, another remand is necessary to obtain adequate medical opinions detailing the nature and etiology of the appellant's disabilities and to ensure substantial compliance with the Board's remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes); Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Finally, the TDIU claim is inextricably intertwined with the service connection claims. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on an appellant's claim for the second issue). As such, the Board will defer adjudication of the TDIU claim pending the requested development of the service connection claims. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to the VA examiner who authored the May 2017 addendum opinion to obtain an additional addendum opinion. If the examiner is not available, another equally qualified mental health professional may provide the opinion. The electronic claims folder must be made available to and reviewed by the examiner. The examiner should be provided with a list of any verified ACDUTRA and IDT dates. The examiner is requested to provide opinions as to the following: a) Is it at least as likely as not (probability of 50 percent or more) that any current knee, shoulder or low back diagnosis was incurred or aggravated by disease or injury during a period of active duty or ACDUTRA? b) Is it at least as likely as not (probability of 50 percent or more) that any current mental health diagnosis was incurred or aggravated by injury during a period of IDT? In answering the above questions, the examiner must comment on the appellant's contentions that she played basketball during service and performed heavy duty work during service without proper safety equipment. The fact that no such problems are shown in the service treatment records, standing alone, is not a sufficient basis upon which to provide a negative opinion. The examiner must also not rely solely on the fact that the appellant did not complain of any such problems until after service. c) If it is determined that a knee disability is related to ACDUTRA or IDT, is it at least as likely as not (probability of 50 percent or more) that any currently diagnosed disabilities of the back or shoulders were caused or proximately aggravated (meaning worsened beyond its natural progression) by the knee disabilities? The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner must discuss the lay statements of records. Specifically, the examiner must comment on the appellant's complaints of depression shortly following service. 2. Forward the claims file to the VA examiner who authored the June 2017 addendum opinion to obtain an additional addendum opinion. If the examiner is not available, another equally qualified mental health professional may provide the opinion. The electronic claims folder must be made available to and reviewed by the examiner. The examiner should be provided with a list of any verified ACDUTRA and IDT dates. The examiner is requested to provide opinions as to the following: a) Is it at least as likely as not (probability of 50 percent or more) that any current mental health diagnosis was incurred or aggravated by disease or injury during a period of active duty or ACDUTRA? b) Is it at least as likely as not (probability of 50 percent or more) that any current mental health diagnosis was incurred or aggravated by injury during a period of IDT? The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner must discuss the lay statements of records. Specifically, the examiner must comment on the appellant's complaints of depression shortly following service. 3. After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the issue on appeal. If any benefit sought is not granted, the appellant and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. 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 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). _________________________________________________ James L. March 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).