Citation Nr: 21004207 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 12-22 636 DATE: January 26, 2021 REMANDED Entitlement to service connection for a disability manifested by swollen joints is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1978 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Board last remanded this matter to the RO for further development. As an initial matter, the Board notes that in an August 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for hepatitis C. As this is considered a full grant of the issue of service connection sought on appeal, this issue is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Additionally, in a September 2020 rating decision, the AOJ granted service connection for right knee chondromalacia patella as part of the Veteran’s claim for service connection for swollen joints. As this award is considered a partial grant of the Veteran’s service connection claim, the issue of service connection for a disability manifested by swollen joints remains before the Board. Entitlement to service connection for a disability manifested by swollen joints Although the Board regrets the additional delay, a remand is warranted to obtain an addendum VA opinion. In this regard, although the September 2020 VA examiner comprehensively identified the Veteran’s current disabilities associated with her claim for swollen joints and provided opinions for each disability, the September 2020 VA examiner utilized the incorrect standard in finding that the Veteran’s disabilities were not aggravated by her service-connected hepatitis C. Specifically, the Court of Appeals for Veterans Claims (Court) recently held that for secondary service connection claims, "aggravation" need not be permanent in nature. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019). The Court explained that secondary service connection is warranted for "any incremental increase in disability—any additional impairment of earning capacity—in non-service-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase–regardless of its permanence." See id. at 239 (citing Allen v. Brown, 7 Vet. App. 439, 448 (1995)). Here, the September 2020 VA examiner found that while hepatitis C may be associated with nonspecific and variable joint and muscle pain, the weight of the medical literature does not support that hepatitis C “permanently aggravates” the Veteran’s identified disabilities (left and right carpal tunnel syndrome, left and right de Quervain’s tenosynovitis, left and right middle trigger fingers (3rd digits), left rotator cuff tear with left acromioclavicular arthritis, and lumbosacral degenerative disc and degenerative joint disease with history of right L5-S1 radiculopathy) beyond natural progression. Given that the September 2020 VA examiner used the incorrect standard and did not otherwise provide rationale for her conclusion that the Veteran’s hepatitis C did not aggravate her identified disabilities, a remand is warranted for an addendum VA opinion. Additionally, although the September 2020 VA examiner opined that the Veteran’s left rotator cuff tear with left acromioclavicular arthritis is less likely than not related to service, in part, because the Veteran’s military treatment records are silent regarding ongoing signs or symptoms of this condition, review of the Veteran’s service treatment records (STRs) shows that in January 1990, the Veteran was assessed with a history of shoulder problems but was currently asymptomatic. Specifically, the January 1990 STR reflects that the Veteran had a several month- history involving her left arm giving out when she reached up at a greater than 90-degree angle. Likewise, although the September 2020 VA examiner found that the Veteran’s lumbosacral degenerative disc disease and degenerative joint disease with history of right L5-S1 radiculopathy had an onset in 2006 based on MRI findings and electromyography, review of the evidence shows that the Veteran was assessed with back pain in February 2001 after reporting that she had experienced intermittent back pain for a while. Therefore, on remand, the VA examiner should also provide addendum opinions regarding whether the Veteran’s left shoulder and low back disabilities are related to service with consideration of the above record evidence. Finally, the Board notes that while the Veteran’s service department records include a Report of Medical Examination at enlistment, the record does not contain a separation Report of Medical Examination or any clinical evaluation results at her separation from service. As such, on remand, the RO should also attempt to obtain any missing service records. The matters are REMANDED for the following action: 1. Attempt to obtain any outstanding service department records, to include any separation Report of Medical Examination and/or separation clinical evaluation/examination. All attempts must be documented in the claims file. 2. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is January 2020. 3. Provide the Veteran with another opportunity to identify/and or submit any outstanding private treatment records related to her claims. After obtaining any necessary authorization from the Veteran, all identified records should be obtained. 4. Then, obtain an addendum opinion from the VA examiner who provided the September 2020 opinion or, if necessary, from another appropriate medical professional. The claims file, including a copy of this Remand, must be made available to and be reviewed by the VA examiner. The examiner is requested to furnish an opinion with respect to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s left rotator cuff tear with left acromioclavicular arthritis had its onset during active duty service, manifested within one year of the Veteran’s service, or is otherwise related to active service? In providing the above opinion, the examiner is asked to address the January 1990 STR reflecting that the , the Veteran had a several month history of her left arm giving out when she reached up at a greater than 90 degree angle and that she was assessed with a history of shoulder problems but was currently asymptomatic. (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s lumbosacral degenerative disc disease and degenerative joint disease with history of right L5-S1 radiculopathy had its onset during active duty service, manifested within one year of the Veteran’s service, or is otherwise related to active service? In providing the above opinion, the examiner is asked to consider and address as appropriate the (1) June 1979 STR noting complaints of back and stomach pain regarding an intrauterine device insertion; (2) November 1980 STR noting complaints of back and stomach cramps; (3) February 2001 private treatment record noting the Veteran had on and off back pain that had been going on for a while; and (4) May 1999, December 1999, February 2000, and November 2002 treatment records noting reports of back pain. (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s left and right carpal tunnel syndrome, left and right de Quervain’s tenosynovitis, left and right middle trigger fingers (3rd digits), left rotator cuff tear with left acromioclavicular arthritis, and lumbosacral degenerative disc and degenerative joint disease with history of right L5-S1 radiculopathy are aggravated by her service-connected hepatitis C? If aggravation is found, the examiner should quantify the degree of aggravation, if possible, and state whether there was an increase in disability regardless of permanence, but medically ascertainable. The examiner is reminded that permanent aggravation need not be shown. Rather, aggravation refers to any incremental increase in disability resulting from service-connected conditions regardless of its permanence. See Ward v. Wilkie 31 Vet. App. 233, 241-42 (2019). In providing the above opinions, the VA examiner is asked to consider and address as appropriate the July 2006 private treatment record reflecting the Veteran had been having some aches and pains in her joints, which were thought to be related to her hepatitis C infection. A complete rationale should be given for EACH opinion. A discussion of the facts and medical principles involved would be of considerable assistance to the Board, to include citations to any medical literature, if appropriate. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.