Citation Nr: 21004897 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-17 172 DATE: January 28, 2021 REMANDED Entitlement to service connection for chronic left shoulder pain is remanded. Entitlement to service connection for chronic right shoulder pain is remanded. Entitlement to service connection for a left foot condition claimed as bunionectomy is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from February 1980 to May 1980, June 1980 to September 1985; and served in the United States Navy Reserve from October 1985 to May 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the AOJ in May 2019. In November 2019, the Board remanded this case for additional development. The case is now returned for appellate review. In addition to the issues noted above, the Board remanded the issues of entitlement to service connection for vertebral compression fracture and sciatica in the November 2019 remand. On remand, the AOJ granted service connection for degenerative arthritis of the lumbar spine, and peripheral neuropathy of the sciatic nerve of the bilateral lower extremities in a February 2020 rating decision. A February 2020 notice letter sent as part of the February 2020 rating decision did not include the proper appellate rights information; but instead noted that the Veteran should refer to the Board decision for information on seeking additional review. This letter provided incorrect information, as the Board no longer has jurisdiction given that the issue of service connection for the back and lower extremities sciatica was granted and is no longer on appeal. The issue of entitlement to increased ratings for disabilities of the lumbar spine and peripheral neuropathy are separate matters that should be appealed separately to the Board by filing the proper notice of disagreement. The Veteran should have been notified that she had one year from the date of the February 2020 rating decision to appeal the decision to the Board. Instead, the AOJ, in error, included the issues of increased ratings for the lumbar spine disability and lower extremities peripheral neuropathy in the February 2020 and March 2020 supplemental statements of the case, along with the service connection claims that are on appeal. In an October 2020 rating decision, the AOJ, in pertinent part, denied increased ratings for degenerative arthritis of the lumbar spine and lower extremity peripheral neuropathy of the lower extremities. As part of the October 2020 notice letter, the Veteran was provided with the correct appellate procedures note, namely that she had one year within the date of the rating decision to appeal the decision. For the reasons noted above, the Board does not have jurisdiction over the issues of entitlement to an increased rating for degenerative arthritis of the lumbar spine, and peripheral neuropathy of the sciatic nerve of the bilateral lower extremities as part of the present appeal; any further correspondence regarding these matters should be forwarded to the AOJ. 1. Entitlement to service connection for chronic left shoulder pain is remanded. 2. Entitlement to service connection for chronic right shoulder pain is remanded. The Board remanded the claim for service connection for left and right shoulder pain so that a VA examination could be provided to determine whether her present shoulder disabilities had their onset during active military service, or were caused or aggravated by a disability resulting from disease or injury incurred or aggravated while performing active duty, or active duty for training, or from injury incurred or aggravated while performing inactive duty training. As the Veteran has a 26-year history of service in the United States Navy Reserve from 1985 to 2011 it was important that the examiner be provided with the periods of time when the Veteran was on active duty, active duty for training, and inactive duty training. It was noted that at the May 2019 Board hearing, the Veteran testified that her left shoulder froze in approximately 2000 and her right shoulder froze in approximately 2006. She was unable to move her shoulders without having a lot of pain. She testified that the shoulder conditions just appeared one day, and she found she could not move her shoulder. She went to physical therapy each time and regained some range of motion in each shoulder. The Veteran testified that doing push-ups during PRT and carrying her mission oriented protective posture (MOPP) gear aggravated her left and right shoulder conditions. Private treatment records reflect a diagnosis of adhesive capsulitis of the left shoulder from at least November 2001. An April 2007 service treatment record notes that the Veteran had a history of a frozen right shoulder. A VA medical examination and opinion was provided in February 2020, but the opinion provided is inadequate because the examiner only noted the Veteran’s period of active duty service from 1980 to 1985. The examiner noted the reports of frozen shoulder in November and December 2001 and orthopedic clearance notes in March 2002 and May 2002. However, the examiner did not consider the Veteran’s testimony regarding her frozen shoulder in 2000 and 2006; and was not provided with the Veteran’s periods of time when the Veteran was on active duty, active duty for training, and inactive duty training from 1985 to 2011. The examiner also did not provide any rationale for the opinion that the shoulder disabilities were not caused or aggravated by a disability resulting from disease or injury incurred or aggravated while performing active duty, or active duty for training, or from injury incurred or aggravated while performing inactive duty training. It only was noted that the medical evidence does not support this. Review of the file also does not include any efforts or communication regarding the Board’s remand directive for providing the examiner with a precise listing of the Veteran’s specific periods of active duty, active duty for training (ACDUTRA), and inactive duty training (INACDUTRA). As there has not been substantial compliance with the Board’s previous remand directives regarding the issues of service connection for chronic pain in the left and right shoulders, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to service connection for a left foot condition claimed as bunionectomy is remanded. The Board also remanded the issue of service connection for a left foot condition claimed as bunionectomy in November 2019 so that a VA examination and medical opinion could be provided. It was noted that at the May 2019 Board hearing, the Veteran testified that wearing military shoes and combat boots caused her left foot condition. The Veteran testified that she began having problems with her left foot in approximately 1984 during active duty, when she was pregnant. She testified that her feet grew, but she did not get bigger shoes and she gained a lot of weight. She testified that she underwent a bunionectomy on her left foot in approximately 2000, and her big toe was shorter, which caused callouses. An August 1992 Annual Certificate of Physical Condition reflects that an examiner noted that the Veteran fractured her right 2nd metatarsal in October 1991. A September 2000 private treatment record reflects that the Veteran was scheduled to undergo a bunionectomy with distal first metatarsal osteotomy of her left foot and a tailor’s bunionectomy with fifth metatarsal osteotomy of the left foot. See also December 2000 Medical Certification. In November 2008, a private treatment provider noted that the Veteran had been a patient for 20 years. The treatment provider noted that the Veteran had bunion surgery, which resulted in two screws in her left foot to correct her alignment, which the treatment provider opined would have affected her walking five miles in boots as requested by the Navy. Again, the examiner was to be provided with a precise listing of the Veteran’s specific periods of active duty, active duty for training (ACDUTRA), and inactive duty training (INACDUTRA). A February 2020 VA medical examination and opinion was provided that it was less likely than not that the Veteran’s left hallux valgus and bunion was caused or aggravated by a disability resulting from disease or injury incurred or aggravated while performing active duty or active duty for training, or from injury incurred or aggravated while performing inactive duty training. The rationale was that the medical evidence did not support this; also, medical literature did not support that weight gain during pregnancy caused and/ or resulted in left hallux valgus. The examiner only considered the Veteran’s period of active duty service from 1980 to 1985 and was not provided with the Veteran’s periods of ACDUTRA and INACDUTRA from 1985 to 2011. For these reasons, the examiner’s opinion is inadequate. As there has not been substantial compliance with the Board’s previous remand directives regarding the issue of service connection for a left foot disorder, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to ascertain the nature and etiology of the Veteran’s left and right shoulder conditions. The AOJ should ensure that the examiner has access to the Veteran’s claims file including a copy of this remand. The AOJ should provide the examiner with a precise listing of the Veteran’s specific periods of active duty, active duty for training (ACDUTRA), and inactive duty training (INACDUTRA). A retirement points summary will not suffice. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran’s right and/or left shoulder condition had an onset during active military service, or was caused or aggravated by a disability resulting from disease or injury incurred or aggravated while performing active duty, or active duty for training, or from injury incurred or aggravated while performing inactive duty training. In rendering the opinions, the examiner should consider the statements of the Veteran regarding the symptoms of her left shoulder condition and right shoulder condition to be competent. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Obtain an addendum opinion from an appropriate clinician to ascertain the nature and etiology of the Veteran’s left foot condition. The AOJ should ensure that the examiner has access to the Veteran’s claims file including a copy of this remand. The AOJ should provide the examiner with a precise listing of the Veteran’s specific periods of active duty, active duty for training (ACDUTRA), and inactive duty training (INACDUTRA). A retirement points summary will not suffice. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran’s left foot condition had an onset during active military service or was caused or aggravated by a disability resulting from disease or injury incurred or aggravated while performing active duty or active duty for training, or from injury incurred or aggravated while performing inactive duty training. The examiner should consider and discuss the following: The Veteran’s testimony that she began having problems in her left foot in approximately 1984 during active due to weight gain during pregnancy; and The service treatment records which reflect that the Veteran experienced weight gain during service. In rendering the opinions, the examiner should consider the statements of the Veteran regarding the symptoms of her left foot condition to be competent. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.