Citation Nr: 21001701 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-36 197 DATE: January 11, 2021 REMANDED Service connection for a thoracolumbar spine disorder, with radiation to the bilateral hips, knees, is remanded. Service connection for a cervical spine disorder, with radiation to the bilateral shoulders, arms, elbows and wrists, is remanded. Service connection for a left shoulder disorder is remanded. Service connection for a right shoulder disorder is remanded. Service connection for a left elbow disorder is remanded. Service connection for a right elbow disorder is remanded. Service connection for a left wrist disorder is remanded. Service connection for a right wrist disorder is remanded. Service connection for a left hip disorder is remanded. Service connection for a right hip disorder is remanded. Service connection for a left knee disorder is remanded. Service connection for a right knee disorder is remanded. Service connection for a left ankle disorder is remanded. Service connection for a right ankle disorder is remanded. Service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and generalized anxiety disorder, is remanded. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 2010 to March 2011. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a VA Regional Office (RO). In March 2018, the Board remanded the claims for additional development, and in a decision dated in November 2019 the Board denied the claims. The Veteran appealed the November 2019 Board decision to the Court of Appeals for Veterans’ Claims (Court). In a Joint Motion for Remand (JMR) dated in September 2020, the parties moved the Court to vacate and remand the November 2019 Board decision; and in an Order dated September 14, 2020 the Court granted the parties’ Motion; vacated the November 2019 Board decision; and remanded the claims for action consistent with the terms of the joint motion. 1. Service connection for a thoracolumbar spine disorder, with radiation to the bilateral hips, knees, is remanded. 2. Service connection for a cervical spine disorder, with radiation to the bilateral shoulders, arms, elbows and wrists, is remanded. 3. Service connection for a left shoulder disorder is remanded. 4. Service connection for a right shoulder disorder is remanded. 5. Service connection for a left elbow disorder is remanded. 6. Service connection for a right elbow disorder is remanded. 7. Service connection for a left wrist disorder is remanded. 8. Service connection for a right wrist disorder is remanded. 9. Service connection for a left hip disorder is remanded. 10. Service connection for a right hip disorder is remanded. 11. Service connection for a left knee disorder is remanded. 12. Service connection for a right knee disorder is remanded. 13. Service connection for a left ankle disorder is remanded. 14. Service connection for a right ankle disorder is remanded. 15. Service connection for a psychiatric disorder, to PTSD, depressive disorder, and generalized anxiety disorder, is remanded. 16. Entitlement to a TDIU is remanded. In its March 2018 remand, the Board had requested the RO to obtain the Veteran’s VA treatment records from the San Juan, Puerto Rico VA Medical Center (VAMC). However, as the parties noted in its September 2020 JMR, the record does not indicate that VA made any attempts to obtain these outstanding VA treatment records from the San Juan VAMC. Remand for compliance with the Board’s March 2018 instruction is required. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order). In addition to the above, the parties agreed that in its November 2019 denial of the claims the Board did not provide an adequate statement of reasons or bases regarding whether the Veteran’s diagnosed psychiatric disability, right ankle disability, bilateral knee disability, carpal tunnel disability, cervical spine disability, and right shoulder disability began during service, and whether the June 2019 VA opinions were adequate. The parties pointed out that the June 2019 VA examiners had premised their negative nexus opinions on the absence of documentation in the service treatment records. The parties also pointed out that the Veteran had stated, throughout the appeal period, that his symptoms began during service, and then, citing Caluza, agreed that the Board had failed to set forth an adequate statement of reasons or bases regarding whether the Veteran’s symptomatology began during service, and, if so, whether new VA opinions are warranted insofar as the examiner relied, at least in part, on the lack of in-service notations of each diagnosed disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). See also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the veteran’s report of in-service injury but relied on the service medical records to provide a negative opinion). Additionally, the undersigned is mindful that although the June 2019 examiner did not return a diagnosis regarding the Veteran’s back, left shoulder, bilateral elbow, bilateral hip, or left ankle complaints, service connection is not precluded solely when there is no diagnosis, if there is nevertheless functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (2018). Accordingly, in addition to the request for extant medical records, the Veteran should be scheduled for new examinations. See Saunders, 886 F.3d 1356; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Obtain copies of the Veteran’s VA medical records, which are not already in the claims folder, concerning his claimed treatment at the San Juan, Puerto Rico VA Medical Center, since his separation from service in March 2011. Document all efforts taken to obtain these records. If no records are found, document the claims file accordingly. 2. If, after completion of step 1, additional medical records are obtained, schedule the Veteran for new VA examinations with regard to his claims for service connection for a back, cervical spine, left and right shoulder, left and right elbow, left and right wrist (including left and right carpal tunnel), left and right hip, left and right knee, and left and right ankle disorders. In conjunction with the examination, the examiner must (a.) review the claims file. (b.) discuss the Veteran’s in-service experiences and symptoms and current symptoms with the Veteran and document the Veteran’s contentions in the examination report. (c.) physically examine the back, cervical spine, shoulders, elbows, wrists, hips, knees, and ankles. (d.) conduct, for diagnostic purposes, appropriate radiology testing, if deemed warranted. Provide the diagnosis for the Veteran’s back, cervical spine, left and right shoulder, left and right elbow, left and right wrist, left and right hip, left and right knee, and left and right ankle complaints. If there is no diagnosis, clearly state that this is so. (e.) advise, if there is no diagnosis, as to whether the symptoms described by the Veteran are nonetheless productive of functional impairment of earning capacity of the back, cervical spine, left shoulder, right shoulder, left elbow, right elbow, left wrist, right wrist, left hip, right hip, left knee, right knee, left ankle, or right ankle. (f.) opine, for each diagnosed back, cervical spine, left shoulder, right shoulder, left elbow, right elbow, left wrist, right wrist, left hip, right hip, left knee, right knee, left ankle, and right ankle disorder (or, if there is no diagnosis, any discernible functional impairment of earning capacity of the back or cervical spine, or either shoulder, elbow, wrist, hip, knee, or ankle) as to whether it is at least as likely as not (50/50 probability) that the disorder i. began during active duty service. ii. began (for degenerative disease/arthritis), within the year after the Veteran’s separation from active duty service. iii. is related to some incident of active duty service. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. All conclusions or opinions offered must be accompanied by a complete medical rationale, citing to established medical principles and relevant medical evidence, such as examination findings, service treatment records, VA and private treatment records, the Veteran’s contentions, or other pertinent evidence in the record to support the conclusions reached. 3. If, after completion of step 1, medical records relevant to the Veteran’s mental health functioning are obtained, schedule the Veteran for a new VA examination with regard to his claim for service connection for a psychiatric disorder. In conjunction with this examination, the examiner must (a.) Review the claims file. (b.) Discuss the Veteran’s military experiences and symptoms and post-service complaints with the Veteran and document the Veteran’s assertions in the examination report. (c.) Advise, after clinical assessment, as to whether the Veteran’s symptoms support a DSM-5 diagnosis of PTSD, major depressive disorder, generalized anxiety disorder, or some other acquired psychiatric disorder. If the symptoms do not support a DSM-5 diagnosis of PTSD, major depressive disorder, or generalized anxiety disorder, explain why this is so. (d.) If the Veteran is diagnosed with PTSD, specify the stressor or stressors that serve as the underlying basis for the diagnosis. (e.) Opine, for each DSM-5 confirmed disorder, as to whether it is at least as likely as not (50/50 probability) that the disorder i. had its onset during active duty service. ii. is otherwise related to the Veteran’s service. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. All conclusions or opinions offered must be accompanied by a complete medical rationale, citing to established medical principles and relevant medical evidence, such as examination findings, service treatment records, VA and private treatment records, the Veteran’s contentions, or other pertinent evidence in the record to support the conclusions reached. 4. After completion of the above directives and any other development deemed warranted, re-adjudicate the claims. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Childers, 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.