Citation Nr: 18146014 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 09-06 091 DATE: October 30, 2018 REMANDED Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a left hip disability, to include as secondary to service-connected shortening of the right leg, is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected shortening of the right leg is remanded. Entitlement to service connection for macular hemorrhage of the right eye, to include as secondary to hypertension is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. Entitlement to an initial rating in excess of 10 percent for right hip arthritis is remanded. Entitlement to a rating in excess of 20 percent prior to September 6, 2017, and in excess of 40 percent thereafter, for degenerative disc disease of the lumbar spine is remanded. Entitlement to an increased initial rating in excess of 10 percent disabling prior to September 1, 2014, and in excess of 20 percent thereafter, for right ankle arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1966 to September 1969. His military personnel records reflect service in the Republic of Vietnam. In May 2017 and May 2018, the Board remanded the claims for additional development. For the reasons discussed below, there has not been substantial compliance with the remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a right shoulder disability, to include as secondary to PTSD, is remanded. The Veteran asserts that he sustained a right shoulder disability when he fell out of bed during a PTSD-related nightmare. See January 2012 VA Form 9. The Board remanded this issue in May 2017 to afford the Veteran a VA examination with opinion. In September 2017, the Veteran underwent a VA examination in which he was diagnosed with a right shoulder strain. The examiner concluded it was less likely than not the Veteran’s right shoulder condition was incurred in service. However, the examiner’s opinion is inadequate to decide the claim, as he did not address the Veteran’s contention but rather stated only that service treatment records did not show any complaints of shoulder problems. As such, remand is needed for an addendum VA opinion on this issue. 2. Entitlement to service connection for a left hip disability, to include as secondary to shortening of the right leg, is remanded. 3. Entitlement to service connection for a right knee disorder, to include as secondary to as secondary to shortening of the right leg, is remanded. The Veteran asserts that his right knee disorder and left hip disorder are related to his service-connected residuals of the gunshot wound to the right thigh, including shortening of the right leg. The Board notes that the Veteran is service-connected for right hip arthritis secondary to residuals of a gunshot wound to the right thigh. The Board remanded this issue in May 2017 to afford the Veteran VA examinations with opinions on these respective issues. In September 2017, the Veteran underwent a VA examination in which he was diagnosed with right hip osteoarthritis. However, the examiner did not address what, if any, disability the Veteran had in his left hip despite findings in the examination report of functional impairment of the left hip. The examiner concluded it was less likely than not the Veteran’s left hip condition was incurred in service. However, the examiner’s opinion is inadequate to decide the claim, as he did not address the Veteran’s contention but rather stated only that service treatment records did not show any complaints of left hip problems. Considering these deficiencies, a new VA examination with opinion is needed. That same month, the Veteran was afforded a VA examination in which he was diagnosed with right knee degenerative arthritis. However, the examiner provided a nearly identical negative nexus opinion with respect to the left knee, saying only that there was no record of any complaints concerning the right knee while in service. Remand is needed for an addendum VA opinion on this issue. 4. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. 5. Entitlement to service connection for macular hemorrhage of the right eye, to include as secondary to hypertension, is remanded. The Veteran contends that he developed hypertension as a result of herbicide exposure during active duty service. The Board remanded this issue in May 2017 to afford the Veteran a VA examination with opinion. However, the VA examiner’s September 2017 opinion does not address the Veteran’s contentions and is therefore inadequate to decide the claim. As such, remand is needed for an addendum VA opinion on this issue. Since the Veteran is seeking service connection for macular hemorrhage of the right eye as secondary to his hypertension, this issue is inextricably intertwined with the claim for hypertension and must also be remanded. 6. Entitlement to an initial rating in excess of 10 percent for right hip arthritis is remanded. 7. Entitlement to an increased initial rating in excess of 10 percent disabling prior to September 1, 2014, and in excess of 20 percent thereafter, for right ankle arthritis is remanded. While the record contains contemporaneous VA examinations regarding the Veteran’s service-connected right hip and right ankle disabilities, the September 2017 examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the examination reports do not provide range of motion findings that were obtained on active versus passive motion nor range of motion findings in weight-bearing and nonweight-bearing. New VA examinations with complete findings for the Veteran’s service-connected right hip and right ankle disabilities are therefore needed on remand. 8. Entitlement to a rating in excess of 20 percent prior to September 6, 2017, and in excess of 40 percent thereafter, for degenerative disc disease of the lumbar spine is remanded. 9. Entitlement to service connection for hearing loss is remanded. 10. Entitlement to service connection for tinnitus is remanded. The May 2017 Board remand directives instructed the regional office to complete development, readjudicate the claims, and issue a supplemental statement of the case (SSOC) following compliance with the Board’s remand directives. However, no SSOC was ever issued. An SSOC must be issued to the Veteran upon completion of the remand directives before it is returned to the Board. As these issues are being remanded for further development, the Veteran’s claims folder should be updated to include all outstanding VA treatment records. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated from April 2017 to the present and associate those documents with the Veteran’s claims file. 2. Return the claims file to the examiner who conducted the Veteran’s September 2017 VA examination – or to another appropriate examiner if the September 2017 VA examiner is unavailable – for a supplemental medical opinion on the etiology of the Veteran’s right shoulder strain. The claims file, to include a copy of this Remand, must be made available to the opinion provider for review in connection with the exam. The opinion provider is requested to address the following questions: (a) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran’s diagnosed right shoulder strain had it onset in or was otherwise related to his active duty service? (b) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran’s right shoulder strain was caused by his service-connected PTSD? (c) Is it at least as likely as not (50 percent or higher degree of probability) that the right shoulder strain was aggravated by his service-connected PTSD? A complete rationale should be provided for any opinion. The VA examiner is asked to specifically address the Veteran’s contention that he sustained a right shoulder disability when he fell out of bed during a PTSD-related nightmare. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed left hip disability. The claims folder and any pertinent medical records should be made available for review by the examiner. The examiner should perform any diagnostic tests deemed necessary and elicit from the Veteran a complete medical history, including any medical treatment. Following a review of the record, and any necessary testing, the examiner should address the following questions: (a) Please identify by medical diagnosis each left hip disability found. (b) Is it at least as likely as not (50 percent or higher degree of probability) that any diagnosed left hip disability had it onset in or was otherwise related to his active duty service? (b) Is it at least as likely as not (50 percent or higher degree of probability) that any diagnosed left hip disability was caused by his service-connected residuals of the gunshot wound to the right thigh, including shortening of the right leg? (c) Is it at least as likely as not (50 percent or higher degree of probability) that the right shoulder strain was aggravated by his service-connected residuals of the gunshot wound to the right thigh, including shortening of the right leg? A complete rationale should be provided for any opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. 4. Return the claims file to the examiner who conducted the Veteran’s September 2017 VA examination – or to another appropriate examiner if the September 2017 VA examiner is unavailable – for a supplemental medical opinion on the etiology of the Veteran’s right knee arthritis. The claims file, to include a copy of this Remand, must be made available to the opinion provider for review in connection with the exam. The opinion provider is requested to address the following questions: (a) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran’s diagnosed right knee arthritis had it onset in or was otherwise related to his active duty service? (b) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran’s right knee arthritis was caused by his service-connected residuals of the gunshot wound to the right thigh, including shortening of the right leg? (c) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran’s right knee arthritis was aggravated by his service-connected residuals of the gunshot wound to the right thigh, including shortening of the right leg? A complete rationale should be provided for any opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. 5. Return the claims file to the examiner who conducted the Veteran’s September 2017 VA examination – or to another appropriate examiner if the September 2017 VA examiner is unavailable – for a supplemental medical opinion on the etiology of the Veteran’s hypertension. The claims file, to include a copy of this Remand, must be made available to the opinion provider for review in connection with the exam. The opinion provider is requested to address the following question: Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran’s diagnosed hypertension had it onset in or was otherwise related to his active duty service, including herbicide exposure while serving in the Republic of Vietnam (notwithstanding the fact that it may not be a presumed association)? The examiner must address the NAS Institute of Medicine’s Veterans and Agent Orange: Update 2010 (2010 Update), which concluded that there was limited or suggestive evidence of an association between exposure to Agent Orange and hypertension. A complete rationale should be provided for any opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. 6. Schedule the Veteran for examinations of the current severity of his service-connected right hip and right ankle disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right hip and right ankle disabilities alone and discuss the effect of the Veteran’s right hip and right ankle disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 7. Following any other development deemed necessary, re-adjudicate the Veteran’s claims. If any benefit remains denied, issue an appropriate Supplemental Statement of the Case (SSOC), and give the Veteran an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jack S. Komperda, Counsel