Citation Nr: 21063966 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 13-00 007 DATE: October 18, 2021 REMANDED The issue of entitlement to service connection for shin splints of the left lower extremity is remanded. The issue of entitlement to service connection for shin splints of the right lower extremity is remanded. The issue of entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1981 to January 1994. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction is currently with the RO in Pittsburgh, Pennsylvania. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2016. A transcript of the hearing is of record. These matters were previously before the Board at which times they were remanded for further development. 1. Entitlement to service connection for shin splints of the left lower extremity is remanded. 2. Entitlement to service connection for shin splints of the right lower extremity is remanded. The Veteran contends that he has shin splints of the left and right lower extremities as a result of an in-service motor vehicle accident. In this regard, a December 2020 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no service diagnosis made for right and left shin splints; objective examination was normal; there was no evidence of chronicity of care; and symptoms were subjective only. Therefore, the examiner determined that they were unable to establish a nexus to service. The Board finds the December 2020 VA examiner rationale inadequate to decide the Veteran's claims for service connection for shin splint of the left and right lower extremities. The Veteran testified during the October 2016 Board hearing that his bilateral shins continued to bother him over the years despite not seeking treatment regularly. He further testified that he did not continue to seek treatment because he already received a diagnosis and prognosis of the injuries and he was self-medicating. Such lay evidence was not addressed by the December 2020 VA examiner and seemingly contradicts the VA examiner's opinion that there was no evidence of continuity of care; therefore, an addendum opinion should be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate). Additionally, in Saunders v. Wilkie the Court held that pain resulting in function impairment constitutes a disability as contemplated in 38 U.S.C. § 1110, even in the absence of a presently diagnosed condition. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The February 2020 Board remand directives specifically requested that the examiner determine whether the Veteran's bilateral shin pain causes functional impairment and whether a relationship exists between service and any functional impairment. However, no such determination was made. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board finds that an addendum opinion is also required so that a VA examiner can render an opinion in accordance with Saunders. 3. Entitlement to service connection for a left knee disability is remanded. The Veteran contends that he has a left knee disability as a result of an in-service motor vehicle accident. In this regard, a December 2020 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no chronic diagnosis made for left patellofemoral syndrome; objective examination was normal; and symptoms were subjective only. Therefore, a nexus was not able to be established. The Board finds the December 2020 VA examiner rationale inadequate to decide the Veteran's claim for service connection for a left knee disability. The Veteran's VA treatment records document a diagnosis of left patellar chondromalacia in 2008. See July 2008 Ocala CBOC Records. A November 2008 VA Joints Examination also documented a diagnosis of patellofemoral syndrome. The Veteran testified during the October 2016 Board hearing that his left knee continued to bother him over the years despite not seeking treatment regularly. Such evidence was not addressed by the December 2020 VA examiner and seemingly contradicts the VA examiner's opinion that there was no chronic diagnosis. Further, the requirement of a current disability is satisfied if a disability is diagnosed at the time the claim was filed or during the pendency of the claim, even if the disability subsequently resolves during the appeal period. McClain v. Nicholson, 21 Vet. App. 319, 321(2007); see Romanowsky v. Shinseki, 26 Vet. App. 289, 293(2013) (noting that evidence of a disability preceding the date of claim should be considered when determining whether a disability existed at the date of the claim). Therefore, an addendum opinion should be obtained on remand. See Barr, 21 Vet. App. at 312 (holding that when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Return the file to the December 2020 VA examiner for an addendum opinion. If that examiner is unavailable, the opinion should be provided by another examiner. If an examination is deemed necessary to answer the question presented, one should be scheduled. The claims file, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is asked to address the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran has shin splints of the left and right lower extremities or shin pain (not diagnosed as shin splints) that causes functional impairment that had its onset in service, or within one year of his separation from service, or is otherwise related to service? The examiner is asked to specifically discuss the Veteran's contention that he has shin splints of the left lower extremity and right lower extremity as a result of an in-service motor vehicle accident. The examiner is also asked to specifically discuss the Veteran's contention that his bilateral shins continued to bother him over the years since his separation from service despite not seeking treatment regularly and that he did not continue to seek treatment because he already received a diagnosis and prognosis of the injuries and he was self-medicating. (b.) The examiner is advised the lack of a diagnosis of in service is not, by itself, a sufficient reason to find there is no nexus to service. The salient question is whether any incident of service, including the motor vehicle accident, caused the current disabilities even though they may have been initially diagnosed years after the Veteran's discharge from service. (c.) All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Return the file to the December 2020 VA examiner for an addendum opinion. If that examiner is unavailable, the opinion should be provided by another examiner. If an examination is deemed necessary to answer the question presented, one should be scheduled. The claims file, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is asked to address the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran has a left knee disability that had its onset in service, or within one year of his separation from service, or is otherwise related to service? The examiner is asked to specifically discuss the Veteran's contention that he has a left knee disability as a result of an in-service motor vehicle accident. The examiner is also asked to specifically discuss diagnoses of left patellar chondromalacia in 2001 and 2008 in the VA treatment records and by the 2008 VA examiner; and complaint of pain in left knee documented in the STRs. (b.) The examiner is advised that even if a disorder resolved during the appeal period, service connection may still be awarded if the diagnosis was made when the claim was filed or at any time while the appeal is pending. McClain, 21 Vet. App. at 321. (c.) All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.