Citation Nr: 21005121 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 17-53 415 DATE: January 29, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to compensation for bladder cancer pursuant to 38 U.S.C. §1151 is remanded. REASONS FOR REMAND The Veteran had active service from January 1988 to December 1989. In April 2019, the Board denied these claims, and in response the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In a September 2020 Order, the Court vacated the portion of the Board’s decision denying these claims and remanded them back to the Board for further development and readjudication pursuant to agreement in a Joint Motion for Partial Remand (JMPR). To comply with the JMPR, the Board, in turn, is remanding these claims back to the Agency of Original Jurisdiction (AOJ). In the JMPR, it was agreed that the 2017 Disability Benefits Questionnaire (DBQ) examiners, who concluded the Veteran’s cervical spine, right shoulder, right wrist, and right ankle disabilities are not secondary to his service-connected right knee disability, did not provide an explanation to support their conclusions. The Board sees the examiners did state that the Veteran’s cervical spine, right shoulder, and right ankle range of motion were consistent with his age and body habitus, and that there was a lack of evidence to support his assertion of any disabilities due to a fall caused by his knee. Nevertheless, given the agreement in the JMPR, the Board is remanding these claims for more rationale. In the JMPR, it was also agreed that the April 2017 VA medical opinion concerning the § 1151 claim was inadequate because the examiner did not address whether a nerve cluster was severed during the Veteran’s bladder removal surgery in 2011 and, if so, whether severing the nerve cluster resulted in qualifying additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. 1-4. The claims of entitlement to service connection for cervical spine, right shoulder, right wrist, and right ankle disabilities are remanded. The Veteran separated from service in 1989. He argues that due to his service-connected right knee disability, he has fallen several times which caused or aggravated the claimed disabilities. The Board finds that prior to obtaining supplemental opinions as to whether the Veteran’s claimed disabilities are secondary o his knee, further development is useful. Cervical Spine Disability The Veteran has given conflicting evidence as to when he injured his neck. He has stated that it occurred in approximately 2004 when he fell ten feet (see March 2009 VA clinical record), but has also stated that it occurred in approximately 2000-2002 when he fell 24 feet (see May 2017 DBQ). He contends that the fall was due to his right knee giving way. The earliest clinical evidence of a cervical complaint is in 2009.   Right Shoulder Disability The Veteran has given conflicting evidence as to when he injured his right shoulder. A March 2013 VA clinical record notes that the Veteran had right shoulder pain after a fall three weeks to one month earlier. It was noted that he had an accident fall with backwards FOOSH (Fallen Onto an Out-Stretched Hand) type injury. An X-ray from February 2013 was noted to be normal. The Veteran was assessed with probable rotator cuff (RC) strain. Subsequent records show continued complaints. At a May 2017 examination, the Veteran asserted that he injured his right shoulder in 1992 or 1993 when his knee went out and he jerked back to get a partition wall off his wrist, jerking his shoulder. A May 2017 X-ray showed mild degenerative arthritis in the AC joint. Right Wrist Disability 2010 VA clinical records note that the Veteran has a past medical history of right wrist surgery in 1993. A June 2017 DBQ reflects his statement that in 1993, his right knee went out and he hurt his right wrist; he stated that he was treated at Grapevine Hospital emergency room in Texas, and then had surgery for a damaged and torn ligament. (He contends that at the time, his job was restocking soda vending machines; however, VA clinical records note that in March 1993, the Veteran was a bus driver; thus, the Veteran’s timing may not be accurate.) In January 2008, the Veteran submitted a VA Form 21-4142 for VA to obtain clinical records for the Veteran’s ankle and wrist from Baylor Medical Center for the period from 1991 to 1993; however, in March 2008, VA informed the Veteran that his VA Form 21-4142 was not acceptable and he should resubmit it with the correct name of the facility “Baylor Medical Center at Grapevine”. (This was based on a March 2008 response from Baylor Medical Center at Grapevine which found that the authorization was not valid because the hospital was not addressed by name. The evidence does not reflect that the Veteran submitted a corrected VA Form 21-4142. However, he should once again be afforded the opportunity to do so.   Right Ankle Disability The 2017 DBQ reflects that the Veteran reported he had injured his right ankle while shooting baskets in 1991 or 1992, that he went to the emergency room, and that he was on crutches for three weeks. As noted above, the Veteran should be afforded another opportunity to submit a completed VA Form 21-4142. A June 2009 VA clinical record reflects that the Veteran reported that he injured his right ankle two weeks earlier when his right knee gave out on him. He was assessed with a right ankle sprain, Grade I, improving. An August 2009 VA orthopedic surgery note reflects that the Veteran reported a remote ankle sprain in service and was given a profile, and more recently had injured it when his right knee gave way. The Veteran’s service treatment records (STRs) are unremarkable for a right ankle injury in service, and his profile was limited to his right knee. The Board finds that any contention as to ankle sprain in service is less than credible given the extensive records noting complaints of the knee but none of the ankle. Notably, his April 1987 Report of Medical History for enlistment reflects that he reported a right ankle sprain in 1986 (prior to service) which had healed. His corresponding Report of Medical Examination reflects that upon evaluation his right ankle had range of motion and strength within normal limits, and no deformity, pain, or swelling. A September 2009 orthopedic surgery note reflects that there was some tenderness in the region of the of the ATFL (anterior talofibular ligament) along the anterolateral joint line, but no pain was elicited. Reviews of the MRI showed significant changes consistent with stretching of the ATFL most likely an old sprain. Currently, the evidence of record reflects that a sprain occurred prior to service. All Claims for Service Connection The claims file includes numerous clinical records from 2009 to present for treatment at the Pensacola VAMC; however, it appears that the Veteran had earlier treatment at the VAMC (VA Medical Center) in Dallas Texas (see November 1997 Statement that his treatment records are maintained at the Dallas VAMC). The Veteran has also asserted treatment at the Joint Ambulatory Care Center in Pensacola, Florida from January 2005. Although a March 2009 VA clinical record notes that the Veteran was seen for a vesting examination, there may be earlier records. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. 5. Entitlement to § 1151 compensation for bladder cancer is remanded. In 2011, the Veteran was surgically treated for bladder cancer. He has alleged that his bladder cancer was not initially treated aggressively after it was diagnosed; the JMPR did not find fault with the Board’s determination that the Veteran’s treatment from evaluation to surgery was proper. Thus, it does not need to be further addressed at this time. The Veteran also has alleged that during surgery, a nerve cluster was severed, and it has caused painful residuals. It is this contention that the JMPR noted needs further rationale. An examiner should provide an opinion, with adequate rationale, as to whether the Veteran had a nerve cluster severed, and if so, if it resulted in additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Ask the Veteran to complete a VA Form 21-4142 for Baylor Medical Center at Grapevine, to include the emergency department, for all clinical records related to his right WRIST and right ANKLE from 1990 to 1994. If he provides this necessary authorization, obtain these additional records. Document all requests for these records, as well as all responses, in the claims file and appropriately notify him and his representative if unable to obtain these additional records.   2. Obtain all VA clinical records for the Veteran from December 1989 to March 2009, to include records from the Dallas VAMC in 1997 and the Joint Ambulatory Care Center in Pensacola, Florida in 2005. 3. Thereafter, obtain supplemental opinions to the 2017 DBQs. The examiner is asked to specifically opine on the following: A. Is it as likely as not (50 percent or greater) that the Veteran has a cervical spine, right shoulder, right wrist disability, and/or right ankle disability which is caused by his right knee disability, to include a fall(s) caused by his right knee disability. The examiner should discuss whether the severity and type of the Veteran’s disabilities are indicative of age, and normal wear and tear, or more likely due to a fall claimed as due to the right knee giving way. The examiner should consider: a.) the Veteran reportedly had an ankle sprain prior to service, with no noted symptoms in service; b.) the March 2013 VA clinical record with regard to a right shoulder injury; c.) a May 2017 X-ray showed mild degenerative arthritis in the AC joint; d.) a September 2009 orthopedic surgery note which reflects that there was some tenderness in the region of the of the ATFL (anterior talofibular ligament) along the anterolateral joint line, but no pain was elicited; e.) MRIs of record; and f.) private clinical records, if any.   B. Alternatively, is it as likely as not (50 percent or greater) that the Veteran has a disability of the cervical spine, right shoulder, right wrist disability, and/or right ankle, which is aggravated by his service-connected right knee disability. Regarding the latter, if it is as likely as not that the Veteran’s left knee disability is aggravated (worsened) by his right knee disability, if feasible state the degree of worsening (i.e., the baseline of the disability before aggravation in comparison to the degree of severity after aggravation.) When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. 4. Obtain a supplemental opinion to the April 2017 opinion with regard to the Veteran’s bladder cancer. The examiner is asked to answer the following questions: (A) Is it as likely as not (50 percent or greater probability) that a nerve cluster was severed during the Veteran’s November 2011 bladder surgery? (B) If so, does the Veteran have a disability due to his bladder surgery that is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in provision of care (i.e., did VA fail to exercise the degree of care that would be expected of a reasonable health care provider?) When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.