Citation Nr: 21001512 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-32 115 DATE: January 8, 2021 REMANDED 1. Entitlement to service connection for a left foot disability is remanded. 2. Entitlement to service connection for a right foot disability is remanded. 3. Entitlement to service connection for a left ankle disability is remanded. 4. Entitlement to service connection for a right ankle disability is remanded. 5. Entitlement to service connection for a left knee disability is remanded. 6. Entitlement to service connection for a right knee disability is remanded. 7. Entitlement to service connection for a left wrist disability is remanded. 8. Entitlement to service connection for a right wrist disability is remanded. 9. Entitlement to service connection for a left hip disability is remanded. 10. Entitlement to service connection for a right hip disability is remanded. 11. Entitlement to service connection for a left elbow disability is remanded. 12. Entitlement to service connection for a right elbow disability is remanded. 13. Entitlement to service connection for a left shoulder disability is remanded. 14. Entitlement to service connection for a right shoulder disability is remanded. 15. Entitlement to service connection for a low back disability is remanded. 16. Entitlement to service connection for a fibromyalgia disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1982 to November 1982, November 1983 to June 1991, April 2008 to August 2008, and March 2009 to October 2009. He had additional service in the Army National Guard. The Veteran served in Southwest Asia, Kuwait, from February 13, 1991, to April 30, 1991. Therefore, he is considered Persian Gulf War veteran for the purposes of 38 C.F.R. § 3.317. See 38 C.F.R. § 3.317(e). The Veteran testified before the undersigned Veterans Law Judge at a June 2019 hearing. A hearing transcript is associated with the claims file. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board remanded the appeal for additional evidentiary development. As explained below, there has not been substantial compliance with the Board’s prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also, Dyment v. West, 13 Vet. App. 141 (1999). The Board notes that the Veteran has raised claims for service connection for venous insufficiency of the lower extremities. These matters are not before the Board. To the extent that the Veteran seeks service connection for venous insufficiency of the lower extremities, with ankle swelling, he is advised to submit a claim on the required form. Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on specific claim form prescribed by the Secretary and available online or at the local Regional Office. This provision effectively removed informal claims from VA’s processes. Issues 1-16 are remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the appeal. Therefore, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that new VA medical opinions are required with respect to all issues. On remand, the AOJ afforded the Veteran VA examinations as related to his back, bilateral shoulder, bilateral ankle, bilateral knee, bilateral hip, bilateral wrists, bilateral elbow, bilateral foot, and fibromyalgia disabilities in March 2020. The Veteran has asserted his disabilities are caused by service on several bases. Pertinently, he asserted the physical demands of service, to include marching, running, jumping, and carrying heavy gear caused stress to his joints. However, the associated March 2020 VA medical opinion (VAMO) reached a negative conclusion without fully addressing the Veteran’s statements and relied on generalizations, rather than the specifics of the Veteran’s history. As to the back, a March 2020 VA examination reflects a diagnosis for chronic back pain. Yet, the associated VAMO is inadequate because it does not explain why the Veteran’s reports of onset of back pain in service and clinical findings of a bulging disc at L4-5 in August 2008, do not reflect an onset of any diagnosed back disability and why the February 2014 back injury, sustained when a horse pushed over the Veteran, is more likely the cause of his current back disability. It also does not fully explain why it is not at least as likely as not that the Veteran’s current back disability is due to or the result of military duties, such as, carrying heavy loads. Further, the VAMO acknowledged that a March 2011 x-ray showed arthritis and explained that, because the arthritis was mild, it “likely began after active-duty.” However, there was no discussion of the disease process and whether the finding for arthritis, a few years after service, is consistent with the onset and progression of the Veteran’s low back symptoms, which was first noted in service, and the progression of symptoms since service. As to the hips, a March 2020 VA examination reflects that the Veteran does not have a current diagnosis associated with the hips. However, the Veteran reported that he has pain in both hips and indicated pain on the lateral pelvis near the iliac crest bilaterally, which began in the late 1980s or early 1990s. Further, the range of motion was abnormal or outside the normal range, bilaterally. Notwithstanding, the VAMO reflects that there was no functional impact and attributed the Veteran’s symptoms to his back without further explanation. No opinion was provided because the Veteran was found to have no diagnosis. However, pain, without a clinical diagnosis, can constitute a disability when it manifests in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018) (the Federal Circuit found that pain alone can constitute a “disability” under 38 U.S.C. § 1110 because pain can cause functional impairment). Hence, the opinion is inadequate, and another opinion is warranted that addresses fully the etiology of the Veteran’s bilateral hip pain. Further, consideration must be given to the provisions of 38 C.F.R. § 3.317. See Stewart v. Wilkie, 30 Vet. App. 383 (2018). At to the knees, a March 2020 VA examination reflects diagnoses for knee joint osteoarthritis, bilaterally. By history, the Veteran reported symptoms of knee popping and grinding since 1992, along with bilateral knee locking in flexion “from time to time” and swelling since 1992; bilateral knees swell when they are flared up. He denied specific injury to either knee. March 2011 x-rays revealed degenerative arthritis of the knees. The associated VAMO is inadequate because it relied on the absence of documented findings during the Veteran’s active military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (An opinion based on the absence of treatment records without consideration of a veteran's competent reports is inadequate). It is also inadequate because it relied on the absence of an in-service injury without addressing the whether it is at least as likely as not that, as theorized by the Veteran, his active service military duties, to include running, marching, jumping, and carrying heavy gear, caused his current bilateral knee disability. To the extent that VAMO references research/literature to support the statement that “arthritis is known to occur earlier in veterans than non-veterans, however, this is due to increased incidence of injury,” this does not obviate the need to fully address the lay evidence including the Veteran’s theory. As to the ankles, a March 2020 VA examination reflects that the Veteran does not have a current diagnosis associated with the ankle joint. However, it was noted that the Veteran had bilateral venous insufficiency with brawny edema and that, by history, his symptoms of bilateral leg swelling began in 1991 at which time he was diagnosed with venous insufficiency. The Veteran denied any disability related to his ankle joints bilaterally. The Board also observes the February 2012 VA examination reflects medical imaging, showing soft tissue swelling over the medial malleolus of the ankles bilaterally as well as changes at the medial malleolus of one ankle, which was noted as possibly due to an old injury. While the examiner did not label the medical imaging reports to specify which ankle was possibly affected by an old injury, later in the VA examination report, he diagnosed the Veteran with limitation of motion with radiographically normal x-ray of the right ankle and degenerative changes as evidence of old trauma x-ray of the left ankle. Hence, the February 2012 and March 2020 VA examinations are incongruous as to the presence of a bilateral ankle disability during the appellate period. Remand is necessary to obtain a clarifying opinion to reconcile these incongruous findings. As to the shoulders, a March 2020 VA examination reflects diagnoses for right shoulder rotator cuff tendonitis and left shoulder glenohumeral osteoarthritis. It noted that August 2010 relevant private treatment records (AuSable Urgent Care PC, Grayling Michigan) reflect the Veteran sustained an injury to right shoulder three weeks earlier when a horse he was working with pulled back and threw him across the yard, resulting in pulled muscles in his right shoulder. He was diagnosed with right rotator cuff sprain. The March 2020 VA examiner further noted that March 2011 x-rays showed mild degenerative changes of the left shoulder. The associated VAMO is inadequate because it relied on the absence of documented complaints and findings during the Veteran’s active military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (An opinion based on the absence of treatment records without consideration of a veteran's competent reports is inadequate). It is also inadequate because it does reflect any meaningful consideration of the Veteran’s theory of entitlement. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner's failure to consider [the Veteran’s] testimony when formulating her opinion renders that opinion inadequate.”). To the extent that the VAMO suggests that the Veteran’s currently diagnosed right shoulder rotator cuff tendinitis is linked to his 2010 injury outside of active military duty, this is not explained. It is noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Also, “[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As to the elbows, a March 2020 VA examination reflects diagnoses for olecranon bursitis, bilaterally. Yet, the associated VAMO is inadequate because it does not reflect consideration of the Veteran’s theory that his elbow problems are due to or the result of cleaning his weapons with solvent and physical demands of service, such as, carrying heavy packs. Further, the VAMO does adequately explain why the current olecranon bursitis condition is not caused by in-service left-hand injury. Hence, remand for an addendum opinion is necessary. As to the wrists, a March 2020 VA examination reflects de Quervain's syndrome, bilaterally, productive of functional impairment described as “Veteran may require accommodation to avoid gripping tasks in the workplace.” There is no evidence of wrist arthritis. By history, the Veteran denied injury, but reported pain in his wrists (radial side) and stated he believes his left wrist was injured when he injured his left hand during active-duty. It is noted that the Veteran is service-connected for left hand injury (hatch shut on left hand). The associated VAMO reflects that de Quervain's tenosynovitis of the wrist is not a condition known to be caused by trauma; tenosynovitis is not known to be caused by injury; and a previous belief in repetitive injury trauma resulting in de Quervain's tenosynovitis has been debunked. The VAMO is inadequate because it does not expressly address in any meaningful way the Veteran’s theories of entitlement (e.g. carrying heavy gear caused stress to his joints; and the crush injury to the left hand with fractured metacarpal). See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016). Therefore, remand is warranted. As to the feet, a March 2020 VA examination reflects diagnoses for bilateral flat feet (pes planus) and hammer toes along with degenerative arthritis. By history, the Veteran fell into a 7 to 8-foot hole in 1991 and received treatment at the troop medical clinic. The associated VAMO is inadequate because it relied on the absence of documented findings during the Veteran’s active military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (An opinion based on the absence of treatment records without consideration of a veteran's competent reports is inadequate). Moreover, the VAMO does not reflect consideration of the Veteran’s theory of entitlement and that a few years after his last period of active duty, while with the Army National Guard, the Michigan Army National Guard found the Veteran not fit for retention (disqualified) due to pes planus and a hammertoe deformity. See STR- Medical (July 2012). As for fibromyalgia, and the Veteran’s complaints of widespread pain, the Board finds the March 2020 opinion is inadequate. It reflects that the Veteran did not meet the criteria for a diagnosis of fibromyalgia at the time of the February 2020 VA examination; and it appears to acknowledged that he had had a diagnosis of fibromyalgia in April 2016. The March 2020 opinion notes the current findings were based on new diagnostic criteria for fibromyalgia developed by the American College of Rheumatology (ACR) in 2010. However, the opinion does not explain whether the 2016 fibromyalgia diagnosis is incorrect or invalid under the “new” diagnostic criteria. Stated differently, it is unclear to the Board whether the Veteran has had a valid diagnosis for fibromyalgia at any time during the appeal period and this is relevant information given that the current disability requirement for service connection is met if he did. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). Further, it is noted that, under 38 C.F.R. § 3.317, service connection for fibromyalgia is warranted if the disease manifested during service in Southwest Asia or to a degree of 10 percent or more not later than December 31,/2021 AND has had the disease or disability for 6 months or more (to include any intermittent episodes of worsening or improvement during that period). See 38 C.F.R. § 3.317(a)(2)(i)(B). Given the contentions and medical evidence, the Board finds that remand for comprehensive medical opinions that address the theories of entitlement and provides a rationale supported by clear conclusions with supporting data along with a reasoned medical explanation connecting the two is warranted. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The matters are REMANDED for the following action: 1. Obtained the Veteran’s VA treatment records for the period from September 2020 to Present. 2. Obtain a medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s complaints of hip joint pain. The examiner must review the entire claims file, including a copy of this remand. Record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. Then, A) Identify the Veteran’s objective indications of hip disability. B) By history, physical examination, or laboratory testing, can the Veteran’s objective indications of a disability be attributed to a known clinical diagnosis? C) If the Veteran’s objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran’s departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diagnosed condition, to include HIP PAIN, was incurred in, or is otherwise related to, his active service? Consider the Veteran’s theory that his symptoms/conditions are due to or the result of the physical demands of military service including marching, running, jumping, and carrying heavy gear. A complete rationale must be provided for all opinions expressed. 3. Obtain a medical opinion for an appropriate clinician to address whether the Veteran has had fibromyalgia at any time during the appeal period since 2011, considering the private treatment record that reflect assessments of fibromyalgia. Next, only if there is a diagnosis of fibromyalgia at any time during this appeal (even if resolved) since 2011, then address whether it required (a) continuous medication for control, or (b) whether the symptoms were episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time, or (c) whether the symptoms were constant, or nearly so, and refractory to therapy. A complete rationale must be provided for all opinions expressed. 4. Obtain addendum opinions from an appropriate clinician regarding whether the Veteran’s currently diagnosed disabilities of the feet (pes planus, hammer toes, arthritis), knees (arthritis), wrists (de Quervain's tenosynovitis), elbows (olecranon bursitis), shoulders (right shoulder rotator cuff tendonitis and left shoulder glenohumeral osteoarthritis) and low back (arthritis) is at least as likely as not due to or the result of the physical demands of military service including marching, running, jumping, and carrying heavy gear. A) If another etiology is more likely, this should be fully explained. B) Indicate whether the Veteran’s reports about his symptoms and his theory of causation (i.e. military service including marching, running, jumping, and carrying heavy gear) align with how the currently diagnosed disabilities are known to develop or are his reports generally inconsistent with medical knowledge or implausible. C) A negative medical opinion may not be predicate solely on the absence of documented in-service complaints or findings. D) Also, as to the wrist and elbow disorders, address the Veteran’s theory that his problems are due to or the result of (1) cleaning his weapons with solvent, (2) physical demands of service, such as, carrying heavy packs; and/or (3) related to in-service left hand crush injury. Fully explain. A complete rationale must be provided for all opinions expressed. 5. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran has abnormal pathology of the right and/or left ankle resulting in functional impairment. If yes, then clearly identify the diagnosis or abnormal findings and functional impairment to include the impact on the Veteran’s ability to work. Also, for the purposes of this opinion only assume that there is disability and opine on whether it is at least as likely as not due to or the result of the physical demands of military service including marching, running, jumping, and carrying heavy gear. A) If another etiology is more likely, this should be fully explained. B) Indicate whether the Veteran’s reports about his symptoms and his theory of causation (i.e. military service including marching, running, jumping, and carrying heavy gear) align with how the currently diagnosed disabilities are known to develop or are his reports generally inconsistent with medical knowledge or implausible. C) A negative medical opinion may not be predicate solely on the absence of documented in-service complaints or findings. D) If the clinician finds that an examination is necessary to render such opinion, one should be afforded. 6. Ensure that all VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Pendleton, Associate 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.