Citation Nr: 21064772 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 20-24 850 DATE: October 21, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for a left leg disorder is remanded. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a left wrist disorder is remanded. Entitlement to service connection for a right wrist disorder is remanded. Entitlement to service connection for a hemorrhoid disorder is remanded. Entitlement to service connection for a left elbow disorder is remanded. Entitlement to service connection for a right elbow disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a disorder manifesting in other arthritis is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a rating of total disability due to individual unemployability based upon service-connected disorders (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1993 to June 1998. These claims come before the Board of Veterans' Appeals (Board) on appeal of an August 22, 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2021 submission, the Veteran's attorney withdrew his request for a hearing. The claim is advanced on the docket due to good cause shown, as per a motion granted on October 6, 2021. 38 U.S.C. § 7107(b); 38 C.F.R. §§ 20.800(c), 20.902(c). See BVA Letter (Oct. 6, 2021). 1. Entitlement to service connection for a lumbar spine disorder is remanded. 2. Entitlement to service connection for a left knee disorder is remanded. 3. Entitlement to service connection for a right knee disorder is remanded. The Veteran submitted to VA examinations to develop the above claims in June 2016. Ultimately, the examiner concluded that despite some in-service treatment for all of the above, the current disorders are each less than 50 percent likely attributable to service due to lack of treatment until a 2004 motor vehicle accident. See VA Exam (June 14, 2016), at Pages 51, 79, and 126 of 139; Rating Decision (Aug. 22, 2016). The Board determines that the etiological opinions mischaracterize the chronology of the disorders and do not consider the Veteran's lay statements. The Veteran appears to state that these disorders persisted through discharge and got worse in 2004 after a second motor vehicle accidentnot that the disorders only manifested after a 2004 motor vehicle accident. The opinions are afforded little probative weight as based upon an inaccurate factual premise, see Reonal v. Brown, 5 Vet. App. 458 (1993), and also solely based upon an absence of evidence from the record and ultimately bare and conclusory, see, generally, Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weigh against contrary opinion"); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006); Jandreau v. Nicholson, 492 F.3d 1372 (2007). On remand, an addendum opinion should be obtained. These matters are remanded accordingly. 4. Entitlement to service connection for headaches is remanded. The Veteran submitted to a VA examination to develop this claim in June 2016. Ultimately, the examiner concluded that despite an allegation of headaches during service, the current headache disorder is less than 50 percent likely attributable to service because the disorder was denied upon separation examination. See VA Exam, supra, at Pages 1 and 126 of 139. The Board determines that the etiological opinion fails to address the relevance or lack thereof of other evidence in the Veteran's service treatment records, including but not limited to a December 22, 1997 Report of Medical History endorsing a past or current history of frequent and severe headaches, and also fails to properly weigh the Veteran's lay statements of headaches persisting since service. The opinion is afforded little probative weight as based upon an inaccurate factual premise, see Reonal v. Brown, 5 Vet. App. 458 (1993), and also solely based upon an absence of evidence from the record and ultimately bare and conclusory, see, generally, Nieves-Rodriguez v. Peake, supra; Stefl v. Nicholson, supra; Barr v. Nicholson, supra; Buchanan v. Nicholson, supra; Jandreau v. Nicholson, supra. On remand, an addendum opinion should be obtained. These matters are remanded accordingly. 5. Entitlement to service connection for a left foot disorder is remanded. 6. Entitlement to service connection for a right foot disorder is remanded. The Veteran submitted to a VA examination to develop these claims in June 2016. Ultimately the examiner concluded that the Veteran's bilateral foot disorder is less than 50 percent likely attributable to service because the disorder was denied upon separation examination. See VA Exam, supra, at Pages 66 and 126 of 139. The Board determines that addendum opinions are required for these claims. The etiological opinion only mentions the Veteran's bilateral pes planus disorder, see id. at Page 126 of 139, but is silent as to other diagnosed metatarsalgia of the left foot. Meanwhile, the examiner failed to opine as to the relevance or lack thereof of January 1995 foot pain and a February 1997 running profile. See STR at Pages 63 and 79 of 110. The examiner also appears to have failed to consider the Veteran's lay statement of continued pain through discharge. See VA Exam, supra, at Page 68 of 139. The opinion is afforded little probative weight as based upon an inaccurate factual premise, see Reonal v. Brown, 5 Vet. App. 458 (1993), and also solely based upon an absence of evidence from the record and ultimately bare and conclusory, see, generally, Nieves-Rodriguez v. Peake, supra; Stefl v. Nicholson, supra; Barr v. Nicholson, supra; Buchanan v. Nicholson, supra; Jandreau v. Nicholson, supra. On remand, an addendum opinion should be obtained. These matters are remanded accordingly. 7. Entitlement to service connection for a left leg disorder is remanded. The Veteran submitted to a VA examination to develop this claim in June 2016. The examiner paradoxically concluded that there was no history of a left hip injury, but the hip pain was resolved, see VA Exam, supra, at Pages 34 and 128 of 139. Meanwhile, despite some history of left hamstring injuries, the examiner concluded that the disorder is less than 50 percent likely attributable to service due to lack of treatment since service. The Board determines that this etiological opinion is inadequate. Notwithstanding contradictory findings as to whether the Veteran ever had a left hip history or whether it resolved, the Board concludes that the Veteran was seen for left hip pain on March 31, 1998. See STR at Page 39 of 110. The opinion is afforded little probative weight as based upon an inaccurate factual premise, see Reonal v. Brown, supra, and also solely based upon an absence of evidence from the record and ultimately bare and conclusory, see, generally, Nieves-Rodriguez v. Peake, supra; Stefl v. Nicholson, supra; Barr v. Nicholson, supra; Buchanan v. Nicholson, supra; Jandreau v. Nicholson, supra. To the extent that the left leg and hip claims may be intertwined with each other, remand is similarly warranted because the deficiency on the left hip precludes adjudication of the left leg. This claim is remanded accordingly. 8. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, is remanded. Upon examination in June 2016, the examiner indicated that the Veteran was diagnosed with sleep apnea in 2004, see VA Exam (June 14, 2016), supra, at Page 1 of 139 (in the headaches examination); however, the examiner appears to have administered the wrong examination, see id. at Page 108 of 134 ("NOTE - If diagnosed with Sleep Apnea and/or Narcolepsy complete the Sleep Apnea and/or Narcolepsy Questionnaire(s), in lieu of this one."). The claim is remanded to afford the Veteran the proper VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 9. Entitlement to service connection for a left ankle disorder is remanded. 10. Entitlement to service connection for a right ankle disorder is remanded. Upon examination in June 2016, the examiner concluded that the Veteran had no diagnosable ankle disorder. See VA Exam, supra, at Page 19 of 139. Notwithstanding the fact that this may be secondary to the feet or knees (which, as having been remanded above, would preclude adjudication of this claim at this time), a recent Federal Court decision, Saunders v. Wilkie, 886 F.3d 1356 (2018) clarifies that held that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability if it results in functional impairment of earning capacity. The claim is accordingly remanded for an addendum opinion. 11. Entitlement to service connection for a left wrist disorder is remanded. 12. Entitlement to service connection for a right wrist disorder is remanded. Upon examination in June 2016, the examiner concluded that the Veteran had no diagnosable wrist disorder. See VA Exam, supra, at Page 5 of 139. A recent Federal Court decision, Saunders v. Wilkie, supra clarifies that held that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability if it results in functional impairment of earning capacity. Meanwhile, even if the Veteran may not have articulated any complaints of wrist injuries in service, see VA Exam, supra, at Page 126 of 139, the Veteran did complain of hand injuries from falling on concrete on February 7, 1997. See STR (Feb. 7, 1997), at Page 63 of 110. As all of the claims herein are being remanded, the Board concludes that adjudication should be deferred accordingly. 13. Entitlement to service connection for hemorrhoids is remanded. Upon examination in June 2016, the examiner elicited the Veteran's testimony that in 1995, he sought medical attention for rectal bleeding and was duly informed of a diagnosis of hemorrhoids. See VA Exam (June 14, 2016), at Page 120 of 139; STR (Aug. 14, 1995), at Page 74 of 110. The Veteran is competent to state that symptoms have persisted since service. The Board has reviewed the examiner's negative nexus opinion, see VA Exam, supra, at Page 126 of 139, and cannot escape the conclusion that it is solely based upon an absence of evidence from the record and ultimately bare and conclusory, see, generally, Nieves-Rodriguez v. Peake, supra; Stefl v. Nicholson, supra; Barr v. Nicholson, supra; Buchanan v. Nicholson, supra; Jandreau v. Nicholson, supra. As a result, the Board deems it necessary to remand the claim for an addendum opinion. 14. Entitlement to service connection for a left elbow disorder is remanded. 15. Entitlement to service connection for a right elbow disorder is remanded. 16. Entitlement to service connection for a left shoulder disorder is remanded. 17. Entitlement to service connection for a right shoulder disorder is remanded. 18. Entitlement to service connection for a disorder manifesting in other arthritis is remanded. A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Board acknowledges that there are no complaints of elbow or shoulder pain in the Veteran's service treatment records; however, as the Board is remanding the wrist claim in light of the Veteran's fall on concrete, and as the Board is remanding all of the claims on appeal herein, the Board concludes that the Veteran is entitled to examinations as to these claims as well. 19. Entitlement to service connection for an acquired psychiatric disorder is remanded. For the reasons to follow, the Board will be remanding this claim. Accordingly, the Board will expand the Veteran's remanded claim to include consideration as to any other acquired psychiatric disability, notwithstanding any previous diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran was afforded a VA psychiatric examination on June 15, 2016 to determine the etiology of an acquired psychiatric disorder. The examiner only returned an opinion as to whether the disorder is at least 50 percent likely caused by depression and trouble sleeping because "I can find no medical evidence in his medical records file nor in his C-file to document this depression and anxiety to 'depression and trouble sleeping during service.' ... I could find no service records to provide this nexus." This opinion is offered little probative weight because it is solely based upon an absence of evidence from the record and ultimately bare and conclusory, see, generally, Nieves-Rodriguez v. Peake, supra; Stefl v. Nicholson, supra; Buchanan v. Nicholson, supra; Jandreau v. Nicholson, supra. Furthermore, the Board notes that the Veteran claimed a history of this disorder upon Report of Medical History on December 22, 1997. See STR (Dec. 22, 1997), at Page 24 of 110, Question No. 11. The Board duly concludes that the etiological opinion is further discounted for failing to address the relevance or lack thereof of this evidence. As such, this claim is remanded for an addendum opinion. 20. Entitlement to a rating of a TDIU is remanded. The Veteran's claim of entitlement to a TDIU is inextricably intertwined with the Veteran's claims for service connection (all remanded for various reasons as respectively detailed above), and action on that matter must be deferred. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran with an appropriate clinician for a VA examination to determine the etiology of his claimed lumbar spine disorder, bilateral knee disorder, bilateral foot disorder, left leg disorder, bilateral ankle disorder, bilateral wrist disorder, bilateral elbow disorder, bilateral shoulder disorder and/or disorder manifesting in other arthritis. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine disorder had its onset during any period of service or is etiologically related to service? The examiner should discuss the significance, if any, of the back pain endorsed on January 2, 1996 and attributed to a motor vehicle accident on December 27, 1995. (B) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral knee disorder had its onset during any period of service or is etiologically related to service? The examiner should discuss the significance, if any, of the bilateral patella pain on January 11, 1995, right knee pain in March 1994 and a complaint of left knee pain due to a sports injury dated October 19, 1994. In addition, the examiner should address the January 11, 1995 request for x-rays of the ankles, feet, and knees, due to "aching" since March 1994. (C) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral foot disorder had its onset during any period of service or is etiologically related to service? The examiner should discuss the significance, if any, of an undated notation of pes planus within the service treatment records, the January 1995 foot pain and the February 1997 running profile. In addition, the examiner should address the January 11, 1995 request for x-rays of the ankles, feet, and knees, due to "aching" since March 1994. (D) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left leg disorder had its onset during any period of service or is etiologically related to service? The examiner should discuss the significance, if any, a left hamstring football injury dated September 12, 1997 and complaints of left hip pain on March 31, 1998. (E) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral ankle disorder had its onset during any period of service or is etiologically related to service? The examiner should discuss the significance, if any, of the injuries to the right ankle attributable to a March 31, 1998 fall. In addition, the examiner should address the January 11, 1995 request for x-rays of the ankles, feet, and knees, due to "aching" since March 1994. (F) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral wrist disorder had its onset during any period of service or is etiologically related to service? The examiner should discuss the significance, if any, of right wrist pain dated July 6, 1994, a bilateral hand injury dated May 20, 1997, attributed to a slip and fall on concrete and an April 27, 1994 complaint of right wrist pain, attributed to a fall from the top bunk bed. (G) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral elbow disorder had its onset during any period of service or is etiologically related to service? The examiner should discuss the significance, if any, of a bilateral hand injury dated May 20, 1997, attributed to a slip and fall on concrete. (H) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral shoulder disorder had its onset during any period of service or is etiologically related to service? The examiner should discuss the significance, if any, of a bilateral hand injury dated May 20, 1997, attributed to a slip and fall on concrete. The examiner is also advised that the Veteran is competent to confirm continued pain since discharge, including continued pain that may have become more severe since a 2004 motor vehicle accident. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Following the receipt of outstanding records, schedule the Veteran with an appropriate clinician for a VA examination to determine the etiology of his claimed headaches. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran's headaches had its onset during any period of service or is etiologically related to service? The examiner should discuss the significance, if any, of the December 22, 1997 Report of Medical History endorsing a past or current history of frequent and severe headaches. The examiner is also advised that the Veteran is competent to confirm continued pain since discharge, including continued pain that may have become more severe since a 2004 motor vehicle accident. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Following the receipt of outstanding records, schedule the Veteran with an appropriate clinician for a VA examination to determine the etiology of his claimed sleep disorder to include obstructive sleep apnea. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep disorder to include obstructive sleep apnea had its onset during any period of service or is etiologically related to service? The examiner is also advised that the Veteran is competent to confirm continued pain since discharge, including continued pain that may have become more severe since a 2004 motor vehicle accident. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Following the receipt of outstanding records, schedule the Veteran with an appropriate clinician for a VA examination to determine the etiology of his claimed hemorrhoids. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran's hemorrhoids had its onset during any period of service or is etiologically related to service? The examiner should address the significance, if any, of an episode of rectal bleeding dated August 14, 1995, diagnosed as hemorrhoids. The examiner is also advised that the Veteran is competent to confirm continued pain since discharge, including continued pain that may have become more severe since a 2004 motor vehicle accident. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently present acquired psychiatric disorder. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following question: For each diagnosed acquired psychiatric disorder, is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder had its onset during any period of service, or is otherwise related to such period of service? A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, Associate 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.