Citation Nr: 21000489 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-24 469 DATE: January 5, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability is granted. Entitlement to service connection for a neck disability is granted. Entitlement to service connection for a right arm disability is granted. REMANDED Entitlement to service connection for a left arm disability is remanded. Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a left hand disability, to include osteoarthritis of the wrist, is remanded. Entitlement to service connection for diabetes mellitus is remanded. FINDINGS OF FACT 1. The Veteran’s acquired psychiatric disability, diagnosed as an unspecified depressive disorder, had its onset in service or is etiologically related to his active service. 2. The Veteran’s neck disability, diagnosed as degenerative disc disease and degenerative arthritis of the cervical spine, to include bilateral cervical radiculopathy, had its onset in service or is etiologically related to his active service. 3. The Veteran’s right arm disability, diagnosed as right olecranon bursitis and degenerative arthritis, had its onset in service or is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a neck disability are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a right arm disability are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1974 to July 1974, December 1990 to April 1991, and September 2001 to June 2002. He also served as a member of the National Guard, to include periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Decision Review Officer (DRO) hearing in June 2015, and before the undersigned Veterans Law Judge at a Board hearing in July 2019. Copies of the transcripts are of record. This case was previously before the Board in January 2020, when the issues listed above were remanded for additional development. The Board notes that an additional claim of entitlement to service connection for bilateral hearing loss was remanded for further development at that time. In a September 2020 rating decision, the RO granted service connection for bilateral hearing loss. Thus, this issue is no longer in appellate status. Additional development was conducted with respect to the Veteran’s remaining claims and the RO issued a September 2020 supplemental statement of the case. The claims are once again before the Board. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for an acquired psychiatric disability. The Veteran asserts that he has an acquired psychiatric disability related to service. The Board concludes that the Veteran has a current diagnosis of unspecified depressive disorder that is related to his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The record includes a July 2020 VA medical opinion which states that the Veteran’s acquired psychiatric disability is at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner noted that although the Veteran does not meet DSM V criteria for posttraumatic stress disorder (PTSD), he does exhibit symptoms consistent with an unspecified depressive disorder. She noted that although the Veteran did not report a diagnosis of depressive symptoms during enlistment, there is evidence that he sustained injuries (neck and head) that contribute to pain experienced currently. She noted that the Veteran cited negative cognitions and additional depressive symptoms subsequent to pain experiences. There are no contradictory opinions of record. A January 2014 VA examination additionally noted no diagnosis of PTSD, the examiner diagnosed a depressive disorder. A nexus opinion was not offered. Treatment records additionally do not reflect a diagnosis of PTSD. Significantly, the VA examiner specifically relates the Veteran’s current acquired psychiatric disability to his service. Coupled with reports from the Veteran of continuous psychiatric issues since service, and with resolution of all reasonable doubt in favor of the claim, the Board finds that service connection for an acquired psychiatric disability, currently diagnosed as an unspecified depressive disorder, is warranted. 2. Entitlement to service connection for a neck disability. The Veteran asserts that he has a neck disability related to service. The Veteran specifically contends that as a result of a May 1974 car accident, he suffered a mild concussion and neck pain. He additionally testified, that he tripped in full military gear and smashed his head against a door in the fall or winter of 1990. The Veteran has submitted numerous buddy statement verifying such incident. As such, this in-service injury is conceded. The Board concludes that the Veteran has a current diagnosis of degenerative disc disease of the cervical spine and degenerative arthritis of the cervical spine that is related to his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The record includes a September 2020 VA medical opinion which states that the Veteran’s current degenerative disc disease, degenerative arthritis and invertebral disc syndrome (IVDS), and cervical radiculopathy are at least as likely as not due to the injury that occurred during service. The examiner noted that multiple lay statement support that an injury occurred during combat readiness training. She noted that lay statements indicate the Veteran has chronic neck pain, shoulder pain and back pain following the injury. The examiner considered that degenerative changes of the spine commonly occur secondary to prior trauma or chronic inflammation. She noted that the lay statements indicate that the Veteran sustained a severe neck injury when colliding with a steel door during service causing chronic neck pain and shoulder pain. She concluded that the degenerative disc disease, degenerative arthritis, IVDS, and cervical radiculopathy are at least as likely as not due to the injury that occurred during active duty. Although a January 2014 VA negative opinion is of record, the examiner did not address the Veteran’s reported in-service events and injuries. Little probative value is accorded to this opinion. After consideration of the evidence, and resolving all doubt in favor of the Veteran, the Board finds service connection for a neck disability is warranted. Significantly, the September 2020 VA examiner has provided an opinion that the Veteran’s neck disability is at least as likely as not related to an event in service. Thus, the claim is granted. 3. Entitlement to service connection for a right arm disability. The Veteran contends that he has a right arm disability caused by active service, to include hauling and filling 120-pound sandbags. National Guard service treatment records show that the Veteran first complained of pain and arthritis in his right elbow in August and September 1990, following his first period of active service and prior to his second period of active service. The Board concludes that the Veteran has a current diagnosis of olecranon bursitis and degenerative arthritis that is related to his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The record includes a September 2020 VA medical opinion which states that the Veteran’s current right elbow disability is at least as likely as not due to service. The examiner noted that lay statements indicate multiple injuries occurring during active duty and the exam (date provided appears to be a typo), indicates degenerative arthritis of the right elbow. The correct date appears to be August 1990, prior to his second period of active duty. The examiner noted that the evidence shows a chronic condition occurring following injury during service, therefore the current olecranon bursitis and degenerative arthritis of the right elbow is at least as likely as not due to service. Although a January 2014 VA negative opinion is of record, the examiner did not provide rationale for his conclusion or address the Veteran’s lay statements. Little probative value is accorded to this opinion. After consideration of the evidence, and resolving all doubt in favor of the Veteran, the Board finds service connection for a right arm disability, diagnosed as a right elbow disability, is warranted. Significantly, the September 2020 VA examiner has provided an opinion that the Veteran’s right arm disability, diagnosed as a right elbow disability, is at least as likely as not related to an event in service. Thus, the claim is granted.   REASONS FOR REMAND 1. Entitlement to service connection for a left arm disability. The Board noted in the January 2020 remand that the although a January 2014 etiological opinion was of record, the VA examiner did not address the Veteran’s lay statements regarding the onset of his left arm disability and in-service events. As also noted in the January 2020 remand, the Veteran contends that his left arm disability was caused by his active military service, to include hauling and filling 120-pound sandbags. Although a September 2020 VA opinion was obtained, the VA examiner provided a negative etiological opinion but did not address the Veteran’s lay statements noted above. Rather, the examiner noted that the lay statements do not mention left elbow and there is not enough evidence to support the current disability is due to service. The Board finds the VA examiner failed to adequately address the Veteran’s lay statements that his disability is related to service, to include hauling and filling 120-pound sandbags. A remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. Whether the remand orders are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Because there was not substantial compliance with the remand instructions, the Board is compelled to remand for an addendum opinion. 2. Entitlement to service connection for a right hand disability. 3. Entitlement to service connection for a left hand disability, to include osteoarthritis of the wrist. The Board noted in the January 2020 remand that although a February 2014 etiological opinion was of record, the VA examiner did not address the Veteran’s lay statements regarding onset of his disabilities and in-service events. As also noted in the January 2020 remand, the Veteran contends that his bilateral hand disability was caused by his active military service, to include hauling and filling 120-pound sandbags. The Veteran was provided a September 2020 VA examination. He was diagnosed with bilateral tendonitis of the hands and fingers. He was additionally diagnosed with left wrist osteoarthritis. In a September 2020 VA opinion, the VA examiner opined that the Veteran’s right and left tendonitis of the hands and fingers were less likely as due to service. The examiner noted no in-service injury or condition, but then went on to state that the tendonitis of his bilateral hands and fingers, and his left wrist were likely due to injury, overuse, or wear and tear over time. The examiner did not address the Veteran’s contentions that he injured his hands and wrist in service and his rationale can be construed in a positive light in contradiction to the negative opinion provided. The Board finds that the VA examiner, with respect to these two issues, did not substantially comply with the remand instructions, specifically to provide an adequate nexus opinion that includes a reasoned explanation and addresses the Veteran’s lay statements. As such, the Board is compelled to remand for addendum opinions. 4. Entitlement to service connection for diabetes mellitus. The Board remanded the Veteran’s claim for service connection for diabetes mellitus in January 2020. The Board noted inadequacies in the January 2014 and February 2014 VA examinations and opinion. The Board found the opinion inadequate as the examiner relied on the lack of absence of evidence in finding that the Veteran’s diabetes was not directly linked to service. However, in providing the negative opinion the September 2020 VA examiner incorrectly noted that the first evidence of diabetes mellitus in the claims file was in 2013, which was many years after active duty service. However, a review of the claims file reflects that private treatment records as early as January 2001 show a history of diabetes mellitus, predating his third period of active duty. The Veteran appears to attribute his diabetes, at least in part, to MREs (meal ready-to-eat) food provided. See BVA Hearing Transcript (T.) at 7. The Board finds that an addendum medical opinion is warranted as the VA examiner relied on incorrect information when providing their negative opinion. An addendum opinion is needed to determine if the Veteran’s diabetes mellitus is related to his first two periods of active service, or was aggravated by his third period of active duty service. The matters are REMANDED for the following actions: 1. Forward the Veteran’s claims folder to an examiner(s) for an addendum opinion regarding the Veteran’s left arm, bilateral hand disabilities, and diabetes mellitus. The examiner is requested to review the claims folder, to include this remand. If further examination of the Veteran is found to be necessary, such should be arranged. Following review of the claims file the examiner should provide an opinion on the following: Left Arm Whether it is at least as likely as not (a probability of 50 percent or greater) that any left arm disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his active service, to include hauling and filling 120-pound bags. Right Hand Whether it is at least as likely as not (a probability of 50 percent or greater) that any right-hand disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his active service, to include hauling and filling 120-pound bags. Left Hand/Wrist Whether it is at least as likely as not (a probability of 50 percent or greater) that any left-hand disability, to include left wrist osteoarthritis, had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his active service, to include hauling and filling 120-pound bags. Diabetes Mellitus Whether there is clear and unmistakable evidence that the Veteran’s preexisting diabetes mellitus did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? If there was an increase in severity of the Veteran’s diabetes mellitus during service (his third period of service 9/01-6/02), was that increase due to the natural progress of the disease, or was it above and beyond the natural progression? If the examiner does not find that the Veteran’s diabetes mellitus was aggravated as a result of his third period of active service, the examiner is then asked to provide an opinion as to whether it is at least as likely as not that any current diabetes mellitus is casually related to his first or second period of service. Rationale for the requested opinions must be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medial knowledge in providing an answer to that particular question(s). 2. After completing the above, and any other development as may be indicted by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.