Citation Nr: 21062994 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 04-39 353 DATE: October 12, 2021 REMANDED Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected bilateral chondromalacia patellae with early degenerative changes, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression, claimed as secondary to the claimed right shoulder disability and/or service-connected bilateral chondromalacia patellae with early degenerative changes, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1983 to May 1987. These matters were last before the Board in October 2020, whereupon they were remanded for further development of the record. Following the issuance of a June 2021 supplemental statement of the case continuing the denial of service connection for both claimed conditions, the case was returned to the Board for its adjudication. Without reiterating the analysis detailed in the prior October 2020 decision, the Board notes that, due to the fact that these matters were the subject of hearings before two of the undersigned Veterans Law Judges (VLJs) in November 2008 and more recently in May 2019, the present remand will be signed by a panel of three VLJs. Arneson v. Shinseki, 24 Vet. App. 379 (2011) 1. Entitlement to service connection for a right shoulder disability as secondary to a service-connected bilateral knee disability is remanded. The Board in October 2020 remanded the issue of entitlement to service connection for a right shoulder disability in order to afford the Veteran a VA examination and elicit an opinion evaluating the likely etiology of any diagnosed right shoulder disability. Specifically, the Board highlighted evidence which suggested that the Veteran's right shoulder disability may be related to a fall that occurred due to his service-connected knee disabilities. The Board therefore requested that the chosen examiner set forth an opinion that addressed the likelihood that the right shoulder disability was secondary to the service-connected bilateral knee disability. In a June 2021 examination, a VA examiner confirmed a diagnosis of right rotator cuff tear as well as right shoulder degenerative arthritis. The examiner then opined that it was less likely than not that the right shoulder condition was proximately caused and/or aggravated by the service-connected bilateral knee disability. In support thereof, the examiner first noted that there was "no evidence to support left/right knee causing shoulder arthritis within medical literature." See June 2021 Medical Opinion Disability Benefits Questionnaire. In addition, the examiner detailed that the Veteran's shoulder arthritis was due as a result from gradual wear and tear of the cartilage, and that the Veteran reportedly did not fall on his shoulder but instead swung his arm around causing him to feel pain. Finally, the examiner highlighted that the Veteran's work as a mail carrier would have contributed to wear and tear of the shoulder joint over time. To begin, the Board cannot rely on this opinion because the examiner did not address direct service connection in any regard. The Board acknowledges that its prior remand instructions did not explicitly instruct the chosen VA examiner to opine as to whether the right shoulder disability was incurred in or otherwise attributable to service. Nevertheless, such an opinion is an inherent aspect of any compensation and pension examination, and accordingly remand is warranted solely to obtain a direct service connection opinion. Of even greater concern, however, the Board also finds fault with the examiner's opinion regarding secondary service connection, as it appears to be based on an inaccurate characterization of the evidence. Specifically, the Board notes that there is copious documentation in the Veteran's submitted private treatment records from a Dr. R.D. beginning in 1998 wherein he directly relates the Veteran's longstanding right shoulder symptomatology to an injury he obtained at work when he fell and caught himself. Coupled with the Veteran's consistent statements regarding the circumstances of that particular injury and his attestation that it was due to his having lost his footing when his knee buckled, the Board finds that this evidence contradicts the June 2021 examiner's determination that the right shoulder disability was not at all attributable to this workplace injury. Accordingly, remand is necessary in order to secure an opinion that is responsive to the Board's prior October 2020 remand instructions; those prior remand instructions are copied in large part below, with additional clarification to ensure that the chosen examiner also opine as to direct service connection. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as secondary to the claimed right shoulder disability and/or the service-connected bilateral knee disability, is remanded. At the outset, the Board notes that the claim of entitlement to service connection for an acquired psychiatric disorder is inextricably intertwined with the extant claim of entitlement to service connection for a right shoulder disability, as the Veteran asserts that the acquired psychiatric disorder is secondary to the right shoulder disability. Therefore, in light of the Board's remand of the right shoulder disability claim, the acquired psychiatric disorder claim must also be remanded pending resolution of the remand instructions pertaining to that disability. Harris v. Derwinski, 1 Vet. App. 180 (1991). That being said, the Board also finds fault with the June 2021 opinion that was obtained pursuant to its October 2020 remand instructions. Specifically, the Board instructed the chosen VA examiner to set forth an opinion as to the likelihood that the acquired psychiatric disorder was secondary to the service-connected bilateral knee disability, to include discussion of whether the bilateral knee disability aggravated the acquired psychiatric disorder. In the resulting June 2021 opinion, the examiner again neglected to address the aggravation prong of the secondary service connection analysis, stating only that it was less likely than not that the Veteran's acquired psychiatric disorder was secondary to the service-connected bilateral knee disability, as the Veteran began to experience depressive symptoms after his injury at the Postal Service. There is no necessary temporal element to the consideration of aggravation in this instance, as the acquired psychiatric disorder can certainly be aggravated (that is, caused to be increased in severity) by a disease or injury that occurs before the psychiatric disorder manifested. Thus, the Board is at a loss as to why the examiner relied solely on a determination that the knee disability was diagnosed prior to the first manifestation of the psychiatric disorder. Accordingly, remand is necessary in order to secure an opinion that is responsive to the Board's prior October 2020 remand instructions, which are copied in large part below. Stegall, supra. The matters are REMANDED for the following action: 1. Return the claims file to the examiner who issued the June 2021 VA shoulder examination and opinion, or to another qualified VA medical professional if that individual is not available, for the purpose of eliciting an addendum opinion as to the likely etiology of the claimed right shoulder condition. The entire claims file, to include a complete copy of this Remand, must be made available to the chosen examiner, and that individual must indicate that they reviewed the entire file prior to setting forth any opinion as to the likely etiology of the right shoulder condition. After a thorough review of the claims file, the examiner is asked to opine as to whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's right shoulder condition had its onset during service or is otherwise related to active service. Furthermore, regardless of the outcome above, the examiner must also opine as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the right shoulder condition was caused or aggravated by one or more service-connected disabilities (listed in a June 2021 rating decision), to specifically include the bilateral knee disabilities. In setting forth this opinion, the examiner is asked to address the Veteran's assertion that his right shoulder disability was caused by or was aggravated by an injury he sustained while working as a postal carrier when his knees buckled, and he caught himself from falling. The examiner should also consider and comment upon as necessary private medical records prepared by a Dr. R.D. beginning in 1998, wherein he attributed the Veteran's longstanding history of right shoulder symptomatology to the same work injury. If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated the right shoulder condition, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. It is essential the examiner discusses the underlying rationale of all opinions expressed, preferably citing to relevant evidence in the file supporting conclusions and/or medical literature or authority. 2. Return the claims file to the examiner who issued the June 2021 VA psychiatric examination and opinion, or to another qualified VA medical professional if that individual is not available, for the purpose of eliciting an addendum opinion as to the likely etiology of the claimed acquired psychiatric disorder. The entire claims file, to include a complete copy of this Remand, must be made available to the chosen examiner, and that individual must indicate that they reviewed the entire file prior to setting forth any opinion as to the likely etiology of the acquired psychiatric disorder. After a thorough review of the claims file, the examiner is asked to opine as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the acquired psychiatric disorder was caused or aggravated by one or more service-connected disabilities (listed in a June 2021 rating decision), to specifically include the bilateral knee disabilities, as well as the claimed right shoulder disability, regardless of any opinion obtained pursuant to the instructions above. Aggravation must be addressed. If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated the acquired psychiatric disorder, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. Moreover, when setting forth this opinion, the examiner should ensure that they apply the proper standard of evaluation. Specifically, the standard for secondary aggravation is any increase in disability, as opposed to the standard of "beyond the natural progression" as noted on the examination form itself. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.