Citation Nr: 20021053 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 16-02 063 DATE: March 24, 2020 REMANDED Entitlement to service connection for a low back disability, to include low back strain (also claimed as low back condition) to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a left hip disability, to include as secondary to service-connected left foot plantar fasciitis, is remanded. Entitlement to service connection for a right hip disability, to include as secondary to service-connected right foot plantar fasciitis, is remanded. Entitlement to service connection for a left ankle disability, to include left ankle strain, to include as secondary to service-connected left foot plantar fasciitis, is remanded. Entitlement to service connection for a right ankle disability, to include right ankle strain, to include as secondary to service-connected right foot plantar fasciitis, is remanded. Entitlement to service connection for an acquired psychiatric disability to include depressive disorder with a history of panic attacks, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1994 to February 1996. In October 2018 the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. A transcript of the hearing is of record. Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon, 20 Vet. App. at 79. In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that addendum opinions and VA examinations are needed in order to determine the nature and etiology of the Veteran’s claimed low back, bilateral hip, bilateral ankle and acquired psychiatric disabilities. Entitlement to service connection for a low back disability, to include low back strain (also claimed as low back condition), for a left hip disability, for a right hip disability, for a left ankle disability, for a right ankle disability, to include as secondary to service-connected disabilities, are remanded. The Veteran alleges that she suffers from low back, bilateral hip, and bilateral ankle disabilities as a result of her active duty service. Specifically, the Veteran contends that during her active duty her joints suffered “wear and tear” from constant jumping on and off of ships. In the alternative she alleges that her disabilities are secondary to her service-connected bilateral foot disabilities. The Veteran’s service treatment records are silent for any complaints, treatment or diagnosis of low back or bilateral hip disabilities. However, the Veteran’s service treatment records do reflect some reports of swollen ankles. Furthermore, the Veteran is service-connected for bilateral plantar fasciitis with heel spur syndrome. In October 2012 the Veteran underwent VA examinations for her low back, bilateral ankles and hips with accompanying disability benefits questionnaires (DBQs). The examiner noted that the Veteran had diagnoses for low back strain, bilateral ankle strain, and bilateral hip tendonitis. However, the examiner provided no etiological opinions. In February 2014, the Veteran underwent a private orthopedic examination. The examiner performed an in-person examination of the Veteran, but it is unclear if the examiner reviewed the entirety of Veteran’s records. The examiner found that not only could the Veteran’s reported daily wear and tear of jumping on and off of ships cause the Veteran’s current joint disabilities, but the examiner also found evidence of continuity of symptomatology since service. In March 2015 the Veteran again underwent VA examinations for her low back, bilateral ankles and hips with accompanying DBQs. The examiner noted that he was unable to give etiological opinions as to the Veteran’s ankles, hips, and back without resorting to mere speculation because there were no service treatment records. Furthermore, he noted that while there was a private February 2014 examination, the VA examiner found that such was not congruent with post-service VA treatment records. The VA examiner noted that VA records dated back to 1998, but there was no mention of any ankle problems until 2005, no hips or back problems until 2011. Finally, the examiner stated that the medical literature did not support joint progression of pain with abnormal gaits, but did support extreme weight gain as a cause of weight bearing joint pain, and that the Veteran had gained over 100 pounds since her discharge. In September 2015 medical opinions were obtained following addition of the Veteran’s service treatment records. In regard to the Veteran’s bilateral ankle disabilities, the examiner found that it was less likely than not that the Veteran’s bilateral ankle disabilities were incurred in or caused by her active duty service. The examiner noted that while the Veteran’s service treatment records mentioned swollen ankles twice, on actual examination there was no swelling. Furthermore, the examiner found no mention of any ankle problems until a new sprain in 2005, 10 yrs after her discharge from service. The examiner noted the February 2014 private examination, but found that such was not congruent with VA treatment records. Therefore, the examiner stated that the 2005 sprain and the current sprain were less likely than not caused by ankle swelling reported in service. The examiner added “an opinion to support the aggravation of this Veteran’s bilateral ankle condition beyond its natural progression by a service-connected condition is not the opinion of the examiner.” The examiner again noted that the private February 2014 opinion was not congruent with VA treatment records, and that there was no mention of ankle problems until 2005. The examiner further noted that the medical literature did not support joint progression of pain with abnormal gaits, but did support that extreme weight increase caused weight bearing joint pain. Therefore, the examiner found that weight gain was a contributing factor to the Veteran’s progressive joint pain, and that her bilateral ankle condition was less likely than not aggravated beyond its natural progression by her service-connected bilateral foot disabilities. In regard to the Veteran’s bilateral hip and back disabilities, the examiner found that they were less likely than not proximately due to or the result of Veteran’s service-connected bilateral foot disabilities. The examiner noted that the Veteran’s service treatment records were silent for any hip or back problems. The examiner noted that the private February 2014 opinion was not congruent with VA treatment records, and again noted that there was no mention of any hip or back problems until 2011. The examiner again noted that the medical literature did not support joint progression of pain with abnormal gaits, but did support that extreme weight increase caused weight bearing joint pain. Therefore, the examiner found that weight gain was a contributing factor to the Veteran’s progressive joint pain, and that her bilateral hip and back disabilities were less likely than not caused by or aggravated beyond their natural progression by her service-connected bilateral foot disabilities. The Board finds that the September 2015 opinions are inadequate for adjudication purposes. First the examiner while discussing the Veteran’s service treatment records, failed to consider and/or discuss the Veteran’s allegations of in-service wear and tear, to include jumping on and off of ships. Furthermore, the examiner while attempting to discredit the February 2014 private opinion, only discussed the private examiner’s reference to continuity of symptomatology and did not address the examiner’s opinion that the Veteran’s in-service wear and tear could cause the joint problems that she currently suffers. Furthermore, the September 2015 examiner only offered secondary opinions for the Veteran’s hip and back claims and did not discuss direct service connection. Therefore, on remand addendum opinions which consider all theories of entitlement, both direct and secondary, for the Veteran’s orthopedic claims should be obtained and the examiner must thoroughly review the record and discuss the Veteran’s allegations of in-service strain on her joints. Entitlement to service connection for an acquired psychiatric disability to include depressive disorder with a history of panic attacks, to include as secondary to service-connected disabilities, is remanded. The Veteran alleges that she suffers from an acquired psychiatric disability, to include depressive disorder with a history of panic attacks as a result of her active duty service, or in the alternative as a result of her claimed bilateral ankle, hip and back disabilities as well as her service-connected bilateral foot disabilities. The Board finds that the Veteran’s claim for service connection for an acquired psychiatric disability is inextricably intertwined with the claims for service connection for bilateral hip and ankle and back disabilities, because a grant of the latter service connection claims could significantly change the adjudication of the issue of service connection for an acquired psychiatric disability. 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 a veteran’s claim for the second issue). Consideration of the issue of service connection for an acquired psychiatric disability must, therefore, be deferred until the intertwined issues are resolved. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Furthermore, an addendum VA examination and opinion should be conducted to determine the likely nature and etiology of the Veteran’s claimed acquired psychiatric disability. While the Board notes that the Veteran’s service treatment records are silent for any complaints, treatment or diagnosis of an acquired psychiatric disability, her post-service treatment records are not. Furthermore, in March 2015 the Veteran underwent a VA mental health examination with an accompanying DBQ. The examiner opined that the etiology of the Veteran’s mental health disorders was not entirely clear. But that it seemed that the Veteran’s childhood physical and sexual abuse was the most likely experiential cause. The examiner provided the rationale that there was insufficient evidence to suggest that the Veteran’s currently, or potentially service-connected ailments served as significant aggravating factors, as “[d]ifficulties with her physical functioning were not discussed until near the end of the evaluation.” Therefore, the examiner found that it was less likely as not that the Veteran’s diagnosed unspecified depressive disorder and/or panic disorder were due to her currently, or potentially service-connected physical ailments. The Board finds this opinion to be inadequate for adjudication purposes. First the examiner failed to provide a medically supported rationale with supporting data and reasoned medical explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). It appears that the examiner relied heavily on the order in which ailments were discussed, however it seems that such may be dictated by the order of the DBQ and questioning rather than by significance to the Veteran. Furthermore, the opinion was speculative. Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993), (finding that a medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish a causal relationship); Morris v. West, 13 Vet. App. 94, 97 (1999) (finding that a diagnosis that the appellant was “possibly” suffering from schizophrenia was deemed speculative). Therefore, on remand an addendum opinion should be obtained. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. The Veteran should be provided with a VA examination to determine the nature and etiology of her claimed low back disability. The claims file should be made available to the examiner. The examiner should respond to the following: A) Identify all manifestations of the Veteran’s low back disability. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s low back disability is related to her service, to include wear and tear from jumping on and off of ships? (2) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s low back disability was caused OR aggravated by her service-connected bilateral foot disabilities? For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. The rationale for any opinion offered should be provided. 3. The Veteran should be provided with a VA examination to determine the nature and etiology of her claimed bilateral ankle disabilities. The claims file should be made available to the examiner. The examiner should respond to the following: A) Identify all manifestations of the Veteran’s bilateral ankle disabilities. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s bilateral ankle disabilities are related to her service, to include wear and tear from jumping on and off of ships? (2) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s bilateral ankle disabilities were caused OR aggravated by her service-connected bilateral foot disabilities? For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. The rationale for any opinion offered should be provided. 4. The Veteran should be provided with a VA examination to determine the nature and etiology of her claimed bilateral hip disabilities. The claims file should be made available to the examiner. The examiner should respond to the following: A) Identify all manifestations of the Veteran’s bilateral hip disabilities. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s bilateral hip disabilities are related to her service, to include wear and tear from jumping on and off of ships? (2) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s bilateral hip disabilities were caused OR aggravated by her service-connected bilateral foot disabilities? For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. The rationale for any opinion offered should be provided. 5. The Veteran should be provided with a VA examination to determine the nature and etiology of her claimed acquired psychiatric disability. The claims file should be made available to the examiner. The examiner should respond to the following: A) Identify all manifestations of the Veteran’s acquired psychiatric disability. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s acquired psychiatric disability is related to her service? (2) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s acquired psychiatric disability was caused OR aggravated by her service-connected bilateral foot disabilities and/or her bilateral ankle, hip and back disabilities? For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation.   The rationale for any opinion offered should be provided. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.