Citation Nr: 18140327 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 10-17 580 DATE: October 2, 2018 REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a bilateral foot disability, to include as due to cold exposure, is remanded. Entitlement to service connection for a bilateral hand disability, to include as due to cold exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1979 to December 1982. He has additional periods of service in the Army Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2010, the Veteran testified at a Decision Review Officer (DRO) hearing. In November 2012, the Veteran testified during a Board hearing before the undersigned. Transcripts of those hearings are of record. In February 2013 to afford the Veteran VA examinations for the claimed disabilities. In April 2014 and March 2017, the Board remanded the case to obtain additional records. 1. Entitlement to service connection for a left shoulder disability is remanded. The Veteran contends that he has a left shoulder disability due to service. He maintains that such disability is due to a left shoulder injury incurred while playing football during service. See November 2012 Hearing Tr. at 62. An October 2013 VA examiner diagnosed degenerative joint disease of the left shoulder, yet in his negative nexus opinion, the examiner did not consider the Veteran’s competent report regarding the in-service left shoulder injury that occurred while playing football and essentially relied on the absence of left shoulder in-service treatment records. An addendum opinion is necessary to address such deficiency. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for a right elbow disability is remanded. The Veteran contends that he has a right elbow disability due to service. He maintains that he “slipped . . . [while] carrying ammo . . . and landed on [the right] elbow” during service. See November 2012 Hearing Tr. at 54. A May 2008 VA radiology report contains a diagnosis of right elbow small exostosis of posterior olecranon process of the ulna as well as the Veteran’s reported history of right elbow pain. The October 2013 VA examiner rendered a negative nexus opinion given his finding that there was no current right elbow disability and there were no complaints or treatments related to the claimed right elbow disability during service. In so doing, the examiner failed to address the Veteran’s competent report regarding the in-service right elbow injury and to render a nexus opinion based on the May 2008 right elbow diagnosis. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). An addendum opinion is necessary to address this deficiency. 3. Entitlement to service connection for a low back disability is remanded. The Veteran contends that he has a low back disability due to service. Specifically, he maintains that the claimed low back disability is due to “lift[ing] a heavy object on [his] vehicle” during his service. See November 2012 Hearing Tr. at 5; October 2013 VA spine examination report. A September 1978 enlistment examination report reflects a normal finding for the Veteran’s spine. An October 2013 VA examiner diagnosed degenerative joint disease of the lumbar spine as well as levoscoliosis of the lumbar spine. While the examiner provided a negative nexus opinion for the Veteran’s lumbar spine scoliosis diagnosis, his opinion was unresponsive to the relevant legal criteria (given that the lumbar spine diagnosis was not noted upon enlistment), i.e., whether the presumption of soundness was rebutted by clear and unmistakable evidence that the Veteran’s lumbar spine scoliosis was both pre-existing and not aggravated beyond it natural progression during service. An addendum opinion is necessary to address this deficiency. See Barr, 21 Vet. App. at 311. 4. Entitlement to service connection for a bilateral knee disability is remanded. The Veteran contends that he has a bilateral knee disability due to service. Specifically, he argues that he injured both knees while playing basketball during service which caused “swelling” in both knees. See November 2012 Hearing Tr. at 44-45. A May 1980 service treatment record documents that the Veteran sustained a left knee injury after he was “hit with a fire extinguisher.” In an August 1986 Reserves report of medical history, the Veteran answered affirmatively for “cramps in [his] legs.” Post-service treatment records contain various complaints of knee joint pain. See, e.g., November 2008, November 2016, and February 2017 William Beaumont Army Medical Center treatment records. October 2013 and March 2016 VA examiners rendered negative nexus opinions for the left knee, but both opinions essentially rely on the absence of post-service knee complaints, and neither examiner considered the August 1986 Reserves report of medical history containing the Veteran’s affirmative response for “cramps in [his] legs.” An addendum opinion is necessary to address this deficiency. 5. Entitlement to service connection for bilateral foot and bilateral hand disabilities are remanded. The Veteran contends that he has bilateral foot and bilateral hand disabilities, to include as due to exposure to the cold and general wear and tear from “constant heavy lifting and strain placed on [his] body [during his service].” See December 2007 Claim; November 2012 Hearing Tr. at 35. December 2013 VA radiology reports contain diagnoses of bilateral hallux valgus and degenerative changes of the right hand. A December 2013 VA examiner rendered negative nexus opinions for the claimed bilateral foot and hand disabilities given that there were no current diagnoses for the hands or feet, to include “osteoarthritis, osteoporosis, or subarticular punched out lesions.” In so doing, the examiner failed to address the December 2013 diagnoses pertinent to the claimed disabilities, suggesting that her opinion was predicated on inaccurate and incomplete facts. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Further, the examiner has not considered the Veteran’s contention that all his claimed disabilities were due to general wear and tear from “constant heavy lifting and strain placed on [his] body [during his service].” See December 2007 Claim. An addendum opinion is necessary to address these deficiencies. Further, pertinent to all claims, the Veteran’s separation examination record is not associated with the claims file. On remand, the AOJ should obtain the missing separation examination report, as such record may include documentation referable to the Veteran’s claimed in-service injuries. See 38 C.F.R. § 3.159(c). The matters are REMANDED for the following action: 1. Obtain the Veteran’s separation examination report for his service from January 1979 to December 1982. All reasonable attempts should be made to obtain such record. If such record cannot be obtained after reasonable efforts have been made, issue a formal determination that such record does not exist or that further efforts to obtain such record would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such record, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Update private and VA clinical records of the Veteran. 3. Obtain a medical opinion from an appropriate physician addressing the Veteran’s service connection claim for a low back disability. (A) The examiner should confirm the current diagnosis of lumbar spine scoliosis. (B) The examiner should opine whether there is clear and unmistakable evidence (i.e. undebatable evidence) that the Veteran’s lumbar spine scoliosis pre-existed service. (C) If there is clear and unmistakable evidence that lumbar spine scoliosis pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence (i.e. undebatable evidence) that the pre-existing disability did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. (D) If there is no clear and unmistakable evidence that the current lumbar spine scoliosis pre-existed service, then the examiner is asked whether it is at least as likely as not (a 50 percent or greater probability) that such is directly related to service. In rendering his or her opinion for above questions, the examiner should specifically consider the Veteran’s competent report that he experienced a low back injury when he “lifted a heavy object on [his] vehicle” as well as general wear and tear from “constant heavy lifting and strain placed on [his] body [during his service],” see December 2007 Claim. A complete rationale should be given for all opinions and conclusions expressed. 4. Obtain medical opinions from an appropriate physician addressing the Veteran’s service connection claims for left shoulder, right elbow, and bilateral knee disabilities. (A) The examiner should identify all current diagnoses relevant to the claimed left shoulder, bilateral knee, and right elbow disabilities since the date of claim (i.e. since December 2007), even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal. Specific to right elbow, the examiner should consider the May 2008 diagnosis of right elbow small exostosis of posterior olecranon process of the ulna. (B) For each diagnosis, the examiner should opine whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such disability had its onset or is otherwise medically related to service, to include as due to the Veteran’s competently reported in-service left shoulder, right elbow, and bilateral knee injuries, as well as general wear and tear from “constant heavy lifting and strain placed on [his] body [during his service],” see December 2007 Claim. Specific to the claimed bilateral knee disability, the examiner should address the May 1980 Reserves report of medical history containing the Veteran’s affirmative response for “cramps in [his] legs.” A complete rationale should be given for all opinions and conclusions expressed. 5. Obtain medical opinions from an appropriate physician addressing the Veteran’s service connection claims for bilateral hand and bilateral foot disabilities. (A) The examiner should identify all current diagnoses relevant to the claimed bilateral hand and bilateral foot disabilities since the date of claim (i.e. since December 2007), even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal. (B) For each diagnosis, the examiner should opine whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such disability had its onset or is otherwise medically related to service, to include as due to the Veteran’s competently reported in-service cold exposure as well as general wear and tear from “constant heavy lifting and strain placed on [his] body [during his service],” see December 2007 Claim. A complete rationale should be given for all opinions and conclusions expressed. 6. After completing the above, and any other development as may be indicated, the AOJ is to readjudicate the claims based on the entirety of the evidence of record. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period should be allowed for response. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kim, Associate Counsel