Citation Nr: 21064301 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-29 502 DATE: October 19, 2021 REMANDED Entitlement to service connection for arthritis, bilateral feet is remanded. Entitlement to service connection for arthritis, bilateral legs is remanded. Entitlement to service connection for arthritis, bilateral arms is remanded. Entitlement to service connection for arthritis, bilateral hands is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from October 1958 to October 1962. This matter before the Board of Veterans' Appeals (Board) is on appeal from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a video conference hearing before the undersigned in October 2019. A transcript of the proceeding is of record. This matter was previously before the Board in June 2021. The Board remanded on these issues to seek an addendum etiology opinion that considered the Veteran's contentions that he has suffered from chronic pain since service. A review of the file reflects that while a new opinion was obtained and subsequently associated with the file, it is inadequate for adjudication purposes. As such, the Board must remand once more for compliance with the original remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In its prior decision, the Board conceded that the Veteran had current diagnoses for his legs, arms, hands, and feet, specifically arthritis. Additionally, the Board accepted the Veteran's contentions and descriptions of rigorous military duties specifically carrying heavy equipment through the jungle as consistent with the places, types, and circumstances of his active duty and accepted it as an in-service event. 38 U.S.C. § 1154(a). The Board, however, was dissatisfied with the etiology opinions provided to date at that time because they relied on the fact that the Veteran's service treatment records (STRs) were silent for complaints instead of taking his statements attesting to chronic pain since service at face value. Moreover, the examiner did not consider whether it is medically likely that his conditions developed as a result of the duties of his military occupational specialty (MOS) years later, despite being able to perform satisfactorily on inactive duty. On remand, the examiner was explicitly told to accept as fact that the Veteran has endorsed pain since service. The examiner who subsequently performed an examination in May 2021 relied on the same basis when providing a negative etiology opinion: that there was an absence of complaints of injury and treatment during service and thus his conditions were not attributable to service. The Board subsequently remanded for a new opinion. The new etiology opinion was provided in August 2021; however, this examiner also failed to follow the Board's remand instructions. Instead of specifically accepting the Veteran's endorsements of pain since service as fact, the examiner documented that he consistently denied chronic joint problems and that his descriptions of high functioning and heavy lifting post-service is inconsistent with someone suffering from arthritis and tendinitis. He further stated, "he was repeatedly examined in Guard and Reserves with no mention of pain. Many patients in clinical treatment settings and in C&P have difficulty remembering when they were last pain-free." This statement clearly documents that the examiner did not accept the Veteran's attestations of pain since service as fact. Moreover, the Veteran's representative pointed out that the examiner did not consider whether pain can be a disability in and of itself, as the Federal Circuit has stated it is. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (finding that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability"). To that end, the Board must remand for an examination that properly addresses these contentions and considers the evidence appropriately. The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran's most recent outstanding VA medical treatment records with his file, specifically those records from January 2021 to the present. 2. Then, the AOJ should seek addendum opinions for the etiologies of the Veteran's bilateral arthritis of the arms, feet, hands, and legs. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran's arthritis of the arms, feet, hands, and/or legs, as well as bilateral knee tendonitis/tendinosis, occurred in or is otherwise etiologically related to the Veteran's military service, to include carrying heavy equipment sometimes weighing over 100 pounds through the jungle. The examiner should accept as fact that the Veteran has endorsed pain since service. The examiner should also specifically state whether it is medically likely that his arthritis and/or bilateral knee tendonitis/tendinosis developed as a result of the duties of his MOS years after service, including serving in a jungle environment, and provide a rationale for why or why not. The examiner should discuss whether pain in and of itself is indicative of an underlying chronic disability, including tendonitis/tendinosis of the knees and whether a military physical would have disclosed the presence of such disorder on examination and whether the Veteran could have performed his duties with such condition without seeking treatment during active service or inactive duty service. The examiner should consider the following: the Veteran's STRs, noting the lack of complaints of joint pain; imaging reports associated with the record in January 2017, March 2017, and May 2021; CAPRI VA treatment records, noting osteoarthritis; testimony from the October 2019 video conference hearing; the Veteran's correspondence and literature received in November 2019 claiming arthritis may be due to duty in a jungle environment; and the February 2020 and May 2021 VA examinations and opinions. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.