Citation Nr: 18161340 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 12-05 052A DATE: December 31, 2018 REMANDED Entitlement to service connection for a bilateral shoulder disorder is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a bilateral ankle disorder is remanded. Entitlement to service connection for a left leg disorder is remanded. Entitlement to service connection for a right leg disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1975 to December 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2014, the Veteran testified before the undersigned at a Board hearing in Little Rock, Arkansas. A transcript of that hearing has been associated with the virtual file and reviewed. These matters were previously before the Board in March 2016, at which time it was remanded for further development. Further remand is required to ensure substantial compliance with the March 2016 Remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a bilateral shoulder disorder is remanded. 2. Entitlement to service connection for a low back disorder is remanded. 3. Entitlement to service connection for a left knee disorder is remanded. 4. Entitlement to service connection for a right knee disorder is remanded. 5. Entitlement to service connection for a bilateral ankle disorder is remanded. 6. Entitlement to service connection for a left leg disorder is remanded. 7. Entitlement to service connection for a right leg disorder is remanded. In June 2016, the Veteran was afforded VA examinations regarding his claims of service connection for the back, knees, shoulders, ankles, and legs. Unfortunately, the VA examiner consistently applied the incorrect legal standard in the nexus opinions. Accordingly, the Agency of Original Jurisdiction (AOJ) should schedule the Veteran for VA examinations to determine the nature and etiology of disorders of the back, knees, shoulders, ankles, and legs. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from May 2016 to the present. 2. After completing directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed disorder of the bilateral knees. The clinician should review the virtual file, including a copy of this Remand and the March 2016 Remand. The clinician is to address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed disorder of the right knee manifested during or is otherwise related to the Veteran’s period of active service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that degenerative joint disease of the right knee (i) manifested to a compensable degree within one year of December 7, 1979, or (ii) was noted during service with continuity of the same symptomatology since service. In answering questions (a) and (b), the clinician must consider and discuss (i) in-service complaints of and treatment for right knee pain; (ii) the separation examination noting recurrent right knee pain since October 1978; (iii) a December 1993 private rheumatology consultation noting degenerative disease of the knees; and (iv) lay evidence of symptoms of pain, aching, and giving way during service and getting progressively worse since. (c.) Whether it is at least as likely as not (50 percent or greater probability) that any current right knee disorder was caused by a left knee disorder. (d.) Whether it is at least as likely as not (50 percent or greater probability) that any current right knee disorder has been aggravated (i.e., worsened beyond the normal progression of that disease) by a left knee disorder. (e.) If it is determined that a right knee disorder did not have its onset in nor is otherwise related to service, is there clear and unmistakable evidence (i.e., it is undebatable) that any current right knee disorder, specifically Osgood-Schlatter disease, existed prior to the Veteran’s period of active service? If so, state whether the disorder is a congenital defect or disease. (f.) If the clinician determines that a current right knee disorder clearly and unmistakably pre-existed service and is not a congenital defect, is there clear and unmistakable evidence (i.e., it is undebatable) that the pre-existing right knee disorder was NOT aggravated by the Veteran’s period of active service? This may include affirmative evidence that any increase in disability was due to the natural progression of the condition. The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline. If aggravation is found, state, to the extent possible, the baseline level of disability prior to aggravation. (g.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed disorder of the left knee manifested during or is otherwise related to the Veteran’s period of active service. (h.) Whether it is at least as likely as not (50 percent or greater probability) that degenerative joint disease of the left knee (i) manifested to a compensable degree within one year of December 7, 1979, or (ii) was noted during service with continuity of the same symptomatology since service. In answering questions (g) and (h), the clinician must consider and discuss (i) in-service complaints of and treatment for left knee pain, including a September 1979 assessment of left knee strain; (ii) complaints of left knee pain in a July 1980 VA examination; (iii) a December 1993 private rheumatology consultation noting degenerative disease of the knees; and (iv) lay evidence of left knee symptoms during service and continuing since. (i.) Whether it is at least as likely as not (50 percent or greater probability) that any current left knee disorder was caused by a right knee disorder. (j.) Whether it is at least as likely as not (50 percent or greater probability) that any current left knee disorder has been aggravated (i.e., worsened beyond the normal progression of that disease) by a right knee disorder. (k.) If it is determined that a left knee disorder did not have its onset in nor is otherwise related to service, is there clear and unmistakable evidence (i.e., it is undebatable) that any current left knee disorder, specifically Osgood-Schlatter disease, existed prior to the Veteran’s period of active service? If so, state whether the disorder is a congenital defect or disease. (l.) If the clinician determines that a current left knee disorder clearly and unmistakably pre-existed service and is not a congenital defect, is there clear and unmistakable evidence (i.e., it is undebatable) that the pre-existing left knee disorder was NOT aggravated by the Veteran’s period of active service? This may include affirmative evidence that any increase in disability was due to the natural progression of the condition. The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline. If aggravation is found, state, to the extent possible, the baseline level of disability prior to aggravation. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed disorder of the bilateral legs. The clinician should review the virtual file, including a copy of this Remand and the March 2016 Remand. The clinician is to address the following: (a.) Identify all disorders of the right and/or left legs that are currently present (or present any time from January 26, 2009, to the present). If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. The Board notes that the record contains diagnoses of bone spurs, shin splints, restless leg syndrome, and lymph node inflammation. Even if there is no diagnosed disorder, pain resulting in functional impairment may constitute a disability for service-connection purposes. If present, describe any functional impairment; if not, state why. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed disorder of the legs manifested during or is otherwise related to the Veteran’s period of active service. The clinician must consider and discuss (i) in-service treatment for complaints of left leg pain, spasms, and strain; (ii) in-service treatment for lymph node inflammation in 1977; (iii) the notation of cramps in legs and swollen or painful joints on the August 1979 Report of Medical History; (iv) a December 1979 claim for compensation for stiff left leg; (v) and lay evidence of in-service and post-service symptomatology. Additionally, address the Veteran’s contention that current left leg and right conditions were caused or aggravated by active service due to an extended cut in his left foot at age 9. (c.) If it is determined that a leg disorder did not have its onset in nor is otherwise related to service, is there clear and unmistakable evidence (i.e., it is undebatable) that any current leg disorder existed prior to the Veteran’s period of active service? If so, state whether the disorder is a congenital defect or disease. (d.) If the clinician determines that a current leg disorder clearly and unmistakably pre-existed service and is not a congenital defect, is there clear and unmistakable evidence (i.e., it is undebatable) that the pre-existing leg disorder was NOT aggravated by the Veteran’s period of active service? This may include affirmative evidence that any increase in disability was due to the natural progression of the condition. The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline. If aggravation is found, state, to the extent possible, the baseline level of disability prior to aggravation. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completing directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed disorder of the bilateral ankles. The clinician should review the virtual file, including a copy of this Remand and the March 2016 Remand. The clinician is to address the following: (a.) Identify all disorders of the bilateral ankles that are currently present (or present any time from January 26, 2009, to the present). If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. Even if there is no diagnosed disorder, pain resulting in functional impairment may constitute a disability for service-connection purposes. If present, describe any functional impairment; if not, state why. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed disorder of the bilateral ankles manifested during or is otherwise related to the Veteran’s period of active service. The clinician must consider and discuss the Veteran’s statements asserting that he experienced ankle pain in service and symptoms on a continuous basis since. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. After completing directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed disorder of the bilateral shoulders. The clinician should review the virtual file, including a copy of this Remand and the March 2016 Remand. The clinician is to address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed disorder of the bilateral shoulders manifested during or is otherwise related to the Veteran’s period of active service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that degenerative joint disease/arthritis of the shoulders (i) manifested to a compensable degree within one year of December 7, 1979, or (ii) was noted during service with continuity of the same symptomatology since service. In responding to questions (a) and (b), the clinician must consider and discuss (i) the Veteran’s contention that his current shoulder disorders are due to carrying a flag in windy and cold weather and years working hunched over a desk at a typewriter; (ii) a September 1986 treatment note indicating bursitis of the right shoulder; (iii) a December 1993 treatment note indicating bursitis of the left shoulder; and (iv) the Veteran’s statements asserting shoulder pain beginning during service with symptoms on a continuous basis since. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. After completing directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed back disorder. The clinician should review the virtual file, including a copy of this Remand and the March 2016 Remand. The clinician is to address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed disorder of the bilateral shoulders manifested during or is otherwise related to the Veteran’s period of active service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that arthritis of the lumbar spine (i) manifested to a compensable degree within one year of December 7, 1979, or (ii) was noted during service with continuity of the same symptomatology since service. In responding to questions (a) and (b), the clinician must consider and discuss (i) the Veteran’s contention that a current back disorder is due to years working hunched over a desk at a typewriter; (ii) in-service treatment for lower back and sacroiliac pain; (iii) the August 1979 separation examination indicating recurrent back pain since 1978 secondary to heavy lifting; (iv) the July 1980 VA examination reflecting the Veteran’s report of back pain; (v) a December 1993 rheumatology consultation assessing the Veteran with multifactorial back pain with elements of mechanical, positional, and mild degenerative disease overlapping to produce a complex and difficulty to manage etiology of back pain; and (vi) the Veteran’s statements asserting back pain beginning during service with symptoms on a continuous basis since. (c.) Whether it is at least as likely as not (50 percent or greater probability) that any current back disorder was caused by a disorder of the bilateral shoulders, bilateral ankles, bilateral knees and/or bilateral legs. (d.) Whether it is at least as likely as not (50 percent or greater probability) that any current back disorder has been aggravated (i.e., worsened beyond the normal progression of that disease) by a disorder of the bilateral shoulders, bilateral ankles, bilateral knees and/or bilateral legs. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel