Citation Nr: 21003610 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 13-23 722 DATE: January 22, 2021 REMANDED Entitlement to service connection for a right shoulder disability, to include impingement status post decompression surgery as secondary to the Veteran’s service-connected low back disability, is remanded. Entitlement to service connection for a left shoulder disability, to include rotator cuff tear status post decompression and rotator cuff repair surgery as secondary to the Veteran’s service-connected low back disability, is remanded. Entitlement to service connection for right hip disability, to include osteoarthritis as secondary to the Veteran’s service-connected low back disability, is remanded. Entitlement to service connection for left hip disability, to include osteoarthritis as secondary to the Veteran’s service-connected low back disability, is remanded. Entitlement to service connection for a gastrointestinal disability, diagnosed as internal hemorrhoids and intermittent rectal bleeding, is remanded. REASONS FOR REMAND The Veteran served honorably in the U.S. Army from February 1978 to June 1986, and subsequently served as a member of the Georgia National Guard, completing periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) as follows: (a) ACDUTRA from June 12, 2004 to June 26, 2004; and January 3, 2005 until January 27, 2005, and from April 2, 2005, until April 6, 2005, and additional periods of unverified ACDUTRA and INACDUTRA. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in April 2016; a transcript of that hearing is of record. The Board most recently remanded this appeal in March 2020 for further development, including scheduling the Veteran for additional VA examinations to evaluate his bilateral hip, bilateral shoulder, and gastrointestinal conditions. However, for the reasons set forth below, substantial compliance with the Board’s March 2020 Remand directives has not occurred; accordingly, the Veteran’s service connection claims must once again be remanded for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to service connection for a right shoulder disability, to include impingement status post decompression surgery as secondary to the Veteran’s service-connected low back disability, is remanded. 2. Entitlement to service connection for a left shoulder disability, to include rotator cuff tear status post decompression and rotator cuff repair surgery as secondary to the Veteran’s service-connected low back disability, is remanded. 3. Entitlement to service connection for right hip disability, to include osteoarthritis as secondary to the Veteran’s service-connected low back disability, is remanded. 4. Entitlement to service connection for left hip disability, to include osteoarthritis as secondary to the Veteran’s service-connected low back disability, is remanded. Unfortunately, the Veteran’s service connection claims for his bilateral shoulder and bilateral hip disabilities must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. The Veteran contends that his current bilateral shoulder and bilateral hip disabilities are casually related to his active military service, to include injuries he sustained during service while repairing and working on tanks in connection with his duties as a tank crew member. The Board notes that the evidence of record contains the following relevant lay testimony: (a) the Veteran’s August 2010 lay statement reporting as follows: (i) his left shoulder condition originated in 1985 while on active duty working on his assigned tank and “breaking tracks;” (ii) his left shoulder condition has worsened over the years and flared up while he served in the National Guard; (iii) in 2003, while “on tank gunnery,” the Veteran reports climbing onto a parked tank, slipping off, and falling off the tank onto the pavement; and (iv) after his fall in 2003, the Veteran reports that he began to have “lots of pain from then on, especially my right hip;” and (b) the Veteran’s April 2016 hearing testimony pertaining to his bilateral shoulder condition, to include the following: (i) the Veteran testified that he injured his left shoulder during service while lifting some heavy equipment, that he felt it “pull,” and that it continued to hurt; (ii) the Veteran testified that his left shoulder caused him so much pain that he visited sick call during service, which resulted in a prescription for medication and rest; (iii) the Veteran testified that he injured his shoulder a second time while “working with tanks in Germany,” and he went to sick call a second time; (iv) the Veteran testified that he sustained “lots of injuries” due to the physical labor required for his military occupational specialty (MOS) of communications and armor crew member (tanks), including lifting, pulling, driving, and repairing heavy equipment; (v) the Veteran testified that his private physician (Dr. R) advised him that his left shoulder injury and his bilateral hip condition are direct results of the Veteran’s in-service occupations and physical training during service; (vi) the Veteran further testified that Dr. R advised him that his right shoulder disability “was a direct result of” his left shoulder disability; (vii) the Veteran further testified that his left shoulder was torn so badly that “tendons had to be cut out,” and that he currently has transplanted tendons and a pin in his left shoulder; and (viii) the Veteran testified that the onset of his right shoulder disability occurred as a result of his overcompensation for his left shoulder injury. As noted above, the Board previously remanded the Veteran’s bilateral shoulder and bilateral hip claims in March 2020 for development, including examinations to determine the nature and etiology of the conditions. In August 2020, the Veteran underwent the VA examinations directed by the Board’s March 2020 Remand, which culminated in medical opinion reports finding that the Veteran’s bilateral shoulder and bilateral hip disabilities are not causally related to his military service. Regarding the Veteran’s bilateral shoulder disability, the August 2020 VA examination report contained the following rationale in support of its negative nexus finding: The service member (SM) completed active duty in 1986. Review of a 3/20/01 primary care note indicates the SM worked in a position at post office requiring the loading and unloading of heavy dock plates. The reported post office job requirements represent a reasonable explanation for the “wear and tear” forces which likely impacted the Veteran’s shoulders (promoting injury). Further review of medical record identifies a 11/12/98 primary care notation which indicates the Veteran injured his right shoulder recently (during the summer of 1998) and received steroid injection therapy. The notation specifically indicates that the Veteran uses his arms and shoulders to lift as part of his Post Office job. The 3/20/01 notation indicates the Veteran was employed with the Post Office in 187 [sic]. There was no documentation found by this examiner reporting a complaint of shoulder-related medical problems at the time of discharge from active duty, nor manifested within one year of leaving active duty. The 2/14/86 Medical Board Exam indicates a “No” response was given to the question of ‘Painful or trick shoulder ?’. There is no evidence to suggest that an in-service shoulder injury is associated with documentation to show continuity of the same symptomatology since service. These conclusions are based on the rationale that there is not any documentation to support a shoulder related medical complaint at the time of discharge based on the 2/14/86 Medical Board Exam report. There is no documentation identified reporting a complaint involving the shoulders during the year immediately after separation from active duty. Nor is there any documentation showing continuity of symptomatology during the time period after completing military active duty [sic]. Regarding the Veteran’s bilateral hip disability, the August 2020 VA examination report contained the following rationale in support of its negative nexus finding: Review of the available medical record indicates that at the time of the 2/14/86 Medical Board Examination there was no documentation of any hip-related complaint, or diagnosis. Specifically, the service member responded “No” to questions related to arthritis, rheumatism, and bursitis in the “Review of Systems” component of the 2/14/86 assessment. Review of the medical record by this examiner did not identify any complaint, diagnosis, or treatment of any hip-related condition during the one-year period after the Veteran separated from active duty. The service member (SM) completed active duty in 1986. Review of a 3/20/01 primary care note indicates the Veteran worked in a position at post office requiring the loading and unloading of heavy dock plates. The reported post office job requirements represent a reasonable explanation for the “wear and tear” forces which likely impacted the Veteran’s hips (promoting injury). Documentation indicates the Veteran remained a postal employee from at least 1987 through sometime in 2001. The available medical record documents a portion of an orthopedic progress note dated 1/12/07 which indicates the Veteran was determined to have a clinical impression (clinical diagnosis) of right hip greater trochanteric bursitis at that time with early osteoarthritis also reported. Subsequent X-rays of both hips reported degenerative changes at both hips consistent with a diagnosis of bilateral osteoarthritis. The available documentation indicates there a span of some 20 years passed between the time of separation from active duty and the first documented complaint of a hip-related medical condition. Both August 2020 VA opinions omit any recognition of the Veteran’s ACDUTRA and INACDUTRA service, when in fact, as noted above, the Veteran’s service includes multiple periods of ACDUTRA and INACDUTRA in both 2003 and 2004, and the Veteran has consistently testified that he injured both his left shoulder and his bilateral hips during this time. See 38 U.S.C. § 102(24); 38 C.F.R. § 3.6(a). Moreover, the Veteran is competent to describe his in-service injuries, such as those caused by falling off a tank or lifting and repairing heaving machinery, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), as well as to describe the observable symptoms of his bilateral shoulder and bilateral hip disabilities, including pain, which is non-medical in nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, the Board concludes that further opinion is necessary. Accordingly, the Veteran’s bilateral shoulder and bilateral hip claims must be remanded for additional medical opinions as set forth below in order to determine whether such disabilities are related to his active military service and thus entitled to service connection on any basis. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 5. Entitlement to service connection for a gastrointestinal disability, diagnosed as internal hemorrhoids and intermittent rectal bleeding, is remanded. Unfortunately, the Veteran’s service connection claim for a gastrointestinal disability must also be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. The Veteran contends that his current gastrointestinal disability, diagnosed as internal hemorrhoids and intermittent rectal bleeding, had its onset in early 1984 during service and is therefore entitled to service connection. The Veteran further contends that the symptoms of his gastrointestinal condition have continued ever since, and that he continues to experience intermittent symptoms such as pain, itching, and rectal bleeding. The Veteran’s private treatment records confirm that pursuant to a 2007 colonoscopy, a February 2011 flexible sigmoidoscopy, and repeated physical examinations, he has been diagnosed with internal hemorrhoids and intermittent rectal bleeding. In addition, during his April 2016 hearing before the undersigned, the Veteran testified as follows: (1) during service, he self-treated his gastrointestinal condition because he was too embarrassed to seek medical treatment for hemorrhoids; (2) post-service, his private physician advised him to treat the bleeding of his internal hemorrhoids with Preparation H; (3) during service, he was constantly sitting on hard surfaces for long periods of time, either on the ground or in a tank; and (4) post-service, several physicians have advised him that frequently sitting on hard surfaces caused his internal hemorrhoids. As stated above, in March 2020, the Board remanded the Veteran’s gastrointestinal disability claim for further development, including a VA examination and a medical opinion as to whether such gastrointestinal disability is at least as likely as not related to an in-service injury, event, or disease. A subsequent August 2020 VA examination report issued a negative nexus opinion based upon the following rationale: The lay statement asserting that the Veteran was too embarrassed to go to sick call for symptoms related to hemorrhoids is reviewed. Documentation noted at the 2/14/86 Medical Board Examination indicates the Veteran gave a “No” response to the question of ‘Piles or rectal disease’. It is noted that the Veteran reported that his hemorrhoid symptoms were exacerbated by sitting on hard surfaces including the seating related to his duty as a tanker. During the 8/11/20 exam the Veteran indicated that his duty as a tanker was his last MOS before separating from active duty. Noting the time sequence, the symptoms of hemorrhoidal disease would be expected to be “front of mind” given that his time as a tanker immediately preceded separation from active duty. It would be expected that this symptom would have been documented at the 2/14/86 examination. Further, there was no complaint regarding the lower GI tract identified upon review of the available medical record until 2007 when an apparent lower GI bleeding resulted in a colonoscopy being performed. The actual colonoscopy report was not identified by this examiner in the medical record. However, a 12/20/10 progress note reported the colonoscopy was performed on 1/17/07 and hyperplastic polyps were removed. There was no mention of the presence of hemorrhoids in the 12/20/10 progress note. Since hemorrhoids are a common cause of lower GI bleeding, it would be expected that hemorrhoids would have been mentioned in the 12/20/10 notation had hemorrhoids been identified at the 1/17/07 colonoscopy. However, the Board concludes that the August 2020 VA nexus opinion lacks an adequate rationale, based upon its omission of the following relevant medical and lay evidence: (1) discussion of the Veteran’s February 2011 flexible sigmoidoscopy which, combined with a digital rectal exam, revealed internal hemorrhoids, non-bleeding, grade 1; (2) discussion of the Veteran’s May 2013 fecal occult testing which confirmed blood in the stool and that the Veteran has “known hemorrhoids that periodically bleed;” (3) consideration of the Veteran’s April 2016 testimony before the undersigned that, during service, he self-treated his gastrointestinal disability with Preparation H; and (4) consideration of the Veteran’s post-service private treatment records, replete with additional medical evidence reflecting the continuous yet periodic symptomatology of his internal hemorrhoids, to include intermittent rectal bleeding. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the Board notes that the intermittent nature of the Veteran’s gastrointestinal disability results in fluctuating symptomatology that is confirmed by the Veteran’s private treatment records as follows: (a) February 2011 private treatment records documenting the Veteran’s flexible sigmoidoscopy and digital rectal exam which revealed “internal hemorrhoids, non-bleeding, grade 1;” (b) May 2013 private treatment records reflecting “blood in stool” as shown by a fecal occult blood test; (c) February 2014 private treatment records reflecting “blood in stool; likely due to hemorrhoids;” (d) December 2015 private treatment records reflecting “no hemorrhoids; no rectal masses;” (e) May 2016 private treatment records reflecting “no hemorrhoids; no rectal masses;” (f) July 2016 private treatment records reflecting “intermittent rectal bleeding with wiping;” and (g) December 2019 private treatment records reflecting “unexplained gastrointestinal bleeding defined as unexplained hematochezia (blood in stool). States blood in stool is intermittent and notices on toilet tissue.” Accordingly, further examination is needed to determine the etiology of the Veteran’s current gastrointestinal disability. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). In addition, upon remand, the Veteran’s private treatment records documenting his 2007 colonoscopy, identified by the March 2020 VA examination report as missing from the record, should be obtained. See Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992); 38 C.F.R. § 3.159. Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file, including a copy of the Veteran’s private treatment records from Kaiser documenting his 2007 colonoscopy procedure. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. After the above development and any additionally indicated development has been completed, obtain an addendum opinion from appropriate clinician, different from the March 2020 examiner, to determine the nature and etiology of the Veteran’s claimed bilateral shoulder disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to the following: a) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s bilateral shoulder disability is due to or otherwise causally or etiologically related to his military service from 1978 until 1986. The examiner is requested to address the following lay evidence of record: (i) the Veteran’s August 2010 lay statement reporting that his left shoulder condition originated in 1985 during his active service while he was working on his assigned tank and “breaking tracks;” (ii) the Veteran’s lay testimony that he sustained “lots of injuries” due to the physical labor required for his military occupational specialty (MOS) of communications and armor crew member (tanks), including lifting, pulling, driving, and repairing heavy equipment; b) The examiner must specifically opine whether it is at least as likely as not that the Veteran’s bilateral shoulder disability is due to or otherwise causally or etiologically related to any period of ACDUTRA or INACDUTRA and specifically comment on the report of an injury during reserve service in 2003. The examiner is requested to address the following lay evidence of record: (i) The Veteran’s August 2010 lay statement reporting that his left shoulder condition has worsened over the years and flared up while he served in the National Guard; (ii) the Veteran’s August 2010 lay statement reporting that in 2003, while “on tank gunnery,” he climbed onto a parked tank, slipped off, and fell off the tank onto the pavement A complete rationale for all opinions is required. 3. After the above development and any additionally indicated development has been completed, obtain an addendum opinion from appropriate clinician, different from the March 2020 examiner, to determine the nature and etiology of the Veteran’s claimed bilateral hip disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to the following: a) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s bilateral hip disability is due to or otherwise causally or etiologically related to his military service from 1978 until 1986. The examiner must address the following: i) the Veteran’s April 2016 hearing testimony that he injured his hip during service in connection with his low back injury; b) Whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s bilateral hip disability is due to or otherwise causally or etiologically related to any period of ACDUTRA or INACDUTRA, and specifically comment on the reported injury during reserve service in 2003. The examiner is requested to address the following lay evidence of record: (a) the Veteran’s April 2016 hearing testimony that Dr. R advised the Veteran that his constant physical training during service had “worn down” his cartilage, and that he now needs a hip replacement; 4. After the above development and any additionally indicated development has been completed, obtain an addendum opinion from appropriate clinician, different from the March 2020 examiner, to determine the nature and etiology of the Veteran’s claimed gastrointestinal disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s gastrointestinal disability is due to or otherwise causally or etiologically related to his military service. The examiner should address the intermittent/periodic nature of the Veteran’s current gastrointestinal disability, as well as his testimony regarding his years of self-treatment. (Continued on the next page)   The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale 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.