Citation Nr: 21001520 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-44 983 DATE: January 8, 2021 REMANDED The claim for service connection for a left ankle disability is remanded. The claim for service connection for a right shoulder disability is remanded. The claim for service connection for a left shoulder disability is remanded. The claim for service connection for a right knee disability is remanded. The claim for service connection for a left knee disability is remanded. The claim for service connection for a cervical spine disability is remanded. The claim for service connection for chest pain is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1971 to October 1974. The Department of Veterans Affairs (VA) is grateful for his service. The Board remanded the appealed claims in October 2019. They now return to the Board for further view. At the Veteran’s March 2019 hearing before the undersigned Veterans Law Judge, the Veteran’s representative clarified that all the disabilities the subject of appeal were claimed as due to the Veteran’s motor vehicle accident (MVA) in service in 1973, a reported military sexual trauma (MST), or otherwise related to service. (Board hearing transcript, p. 38). At a prior hearing before a VA Regional Office (RO) Decision Review Officer (DRO) in February 2016, the same representative clarified, in effect, that by MST he meant the Veteran’s psychiatric disability which resulted from the MST. (DRO hearing transcript, p. 32). Thus, the Veteran has claimed service connection for disabilities the subject of appeal not only as directly related to the July 1973 motor vehicle accident, but also as secondary to newly service-connected psychiatric disability. This service-connected psychiatric disability has been characterized by the RO as posttraumatic stress disorder (PTSD), major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches. 1. Claim for service connection for a left ankle disability In a January 2020 addendum to the December 2019 VA examination, the examiner opined that it was not at least as likely as not that the Veteran’s left ankle disability was permanently worsened in severity beyond its natural course by the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches. The examiner explained that the claimed ankle disability was a “separate entity entirely” from the service-connected psychiatric disability, that they were “not medically related,” and that “[a] behavioral/mental condition cannot cause a medical/physiological change in a joint.” Unfortunately, recent caselaw dictates that the question of aggravation is not limited to aggravation ‘beyond natural progression.” Secondary service connection does not require “permanent” worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition’s natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Hence, an addendum is necessary for an opinion addressing the question of any aggravation, even if not beyond the natural course of the claimed disability. 2. – 3. Claims for service connection for right and left shoulder disabilities In a January 2020 addendum to the December 2019 VA examination, in separate opinions, the examiner opined that it was not at least as likely as not that the Veteran’s right and left shoulder disabilities were caused by the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches. The examiner explained that the claimed right and left shoulder disabilities were “not medically related” to the service-connected the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches, and that “[a] behavioral/mental health condition cannot cause a medical/physiological change in a joint.” Also in the January 2020 addendum, in separate opinions, the examiner opined that it was not at least as likely as not that the Veteran’s right and left shoulder disabilities were permanently worsened in severity beyond their natural course by the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches. The examiner explained that “[t] here is no evidence that the Veteran’s behavioral or mental health conditions have caused a physiological change to the Veteran’s right shoulder,” adding, “This is not plausible.” Again, unfortunately, recent caselaw requires an addendum to address the question of any aggravation, even if not beyond the natural course of the claimed disabilities. Ward, 31 Vet. App. 233. Hence, an addendum addressing the question of any aggravation (worsening), even if not beyond natural progress of the claimed disability, is required for each claimed shoulder disability. 4. – 5. Claims for service connection for right and left knee disabilities In an April 2020 addendum to the December 2019 examination, the examiner reviewed the medical record and the Veteran’s history and opined that it was not at least as likely as not that the Veteran’s right knee disability inclusive of diagnosed meniscal tear and degenerative arthritis, was proximately due to or the result of the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches. The examiner explained that the knees conditions were “orthopedic in nature” and there was “no human pathophysiology to connect these conditions” to the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, or traumatic brain injury with headaches. Also in an April 2020 addendum to the December 2019 examination, the same examiner reviewed the medical record and the Veteran’s history and opined that it was not at least as likely as not that the Veteran’s left knee disability inclusive of diagnosed meniscal tear and chondromalacia, was proximately due to or the result of the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches. The examiner explained that the knees conditions were “orthopedic in nature” and there was “no human pathophysiology to connect these conditions” to the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, or traumatic brain injury with headaches. Unfortunately, the April 2020 addendum examiner failed to provide an opinion addressing the questions of aggravation of knee conditions by the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches, and hence an addendum is required to address these questions. 6. Claim for service connection for a cervical spine disability In a January 2020 addendum to the December 2019 examination, a VA examiner reviewed the medical record and the Veteran’s history and opined that it was not at least as likely as not that the Veteran’s cervical spine disability – inclusive of cervical degenerative arthritis, degenerative disc disease with intervertebral disc syndrome and radiculopathy status post spinal fusion with residual pain and scar – was aggravated beyond its natural progression by the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches. The examiner explained that the Veteran’s psychiatric disabilities “do not have a cause and effect relationship with musculoskeletal issues,” and added hat the worsening of the Veteran’s cervical spine disability was “due to natural progression of musculoskeletal wear and tear with age.” Essentially the same addendum opinion and rationale was also obtained in April 2020. Again, unfortunately, recent caselaw requires and addendum to address the question of any aggravation, even if not beyond the natural course of the claimed disability. Ward, 31 Vet. App. 233. Hence, an addendum addressing the question of any aggravation (worsening), even if not beyond natural progress of the claimed disability, is required. 7. The claim for service connection for chest pain The Veteran has claimed entitlement to service connection for chest pain, also claimed as angina, and this has been recognized as a claim for a symptomatic heart disability. In a January 2020 addendum to the December 2019 examination, the examiner provided a single negative opinion against the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches having caused or aggravated the Veteran’s heart condition manifested by chest pain with permanent increase in severity beyond its natural course. Regrettably, this opinion is also deficient both because it addresses permanent worsening beyond its natural course, and because a single opinion was provided for both causation and aggravation. The United States Court of Appeals for Veterans Claims also recently held that causation and aggravation are independent concepts and should have separate opinions and rationales. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). Hence a further addendum is also required for corrective opinions regarding claimed angina. The matters are REMANDED for the following actions: 1. Afford the Veteran and his authorized representative the opportunity to submit additional evidence or argument in furtherance of the remanded claims. 2. Obtain any VA treatment records and any pertinent private treatment records not yet associated with the claims file. The Veteran’s authorization or assistance should be requested, as appropriate. All requests, responses, and records received should be documented in the claims file. If any records cannot be obtained the Veteran should be appropriately notified. 3. Thereafter, obtain additional addendums to the December 2019 examinations to address claimed disabilities including of the left ankle, both shoulders, both knees, the cervical spine, and chest pain also claimed as angina. The issues to be addressed by the remand addendum are questions of aggravation of claimed disabilities by service-connected the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches. The prior examinations were inadequate due to failure to provide required opinions addressing aggravation in significant part due to a change in case law with requires addressing any aggravation, even if not permanent and even if not in excess of the natural course of the disease or disability being claimed. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The claims file must be reviewed inclusive of past examination reports, treatment records, and the Veteran’s statements and testimony. The examiner must also document and consider the Veteran’s own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. That said, the examiner is advised that questions of a causal link between one disability and another are medical questions beyond the ambit of lay knowledge, and hence the Veteran’s lay statements would not be competent evidence to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran’s self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner must address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left ankle disability was aggravated (worsened), even if not permanently and even if not beyond the natural course of the disability, by his service-connected the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s right shoulder disability was aggravated (worsened), even if not permanently and even if not beyond the natural course of the disability, by his service-connected the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches. (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left shoulder disability was aggravated (worsened), even if not permanently and even if not beyond the natural course of the disability, by his service-connected the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches. (d.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disability was aggravated (worsened), even if not permanently and even if not beyond the natural course of the disability, by his service-connected the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches. (e.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left knee disability was aggravated (worsened), even if not permanently and even if not beyond the natural course of the disability, by his service-connected the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches. (f.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine disability was aggravated (worsened), even if not permanently and even if not beyond the natural course of the disability, by his service-connected the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches. (g.) Providing separate opinions for causation and aggravation, is it at least as likely as not (50 percent or greater probability) that the Veteran’s chest pain, also claimed as angina, was caused, or separately, was aggravated (worsened), even if not permanently and even if not beyond the natural course of the disability, by his service-connected the Veteran’s service-connected PTSD, major depressive disorder, and other specified trauma and stress related disorder, alcohol use disorder, and traumatic brain injury with headaches. The examiner must provide a complete explanation for each opinion provided. If the examiner is unable to provide the required opinions, including whether diagnoses may be assigned to claimed disability, he or she should explain why. 4. Thereafter, readjudicate the remanded claims. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter 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.