Citation Nr: 21065354 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-18 314 DATE: October 25, 2021 REMANDED Entitlement to service connection for a headache disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right hand disorder is remanded. Entitlement to service connection for a left hand disorder is remanded. Entitlement to service connection for a cervical disorder is remanded. Entitlement to service connection for a right eye disorder is remanded. REASONS FOR REMAND The Veteran had active service from March 1973 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of an Agency of Original Jurisdiction (AOJ) of the U.S. Department of Veterans Affairs (VA). In-Service Fall In October 2015, the Veteran claimed service connection for the disabilities above. In relevant part, he wrote: In November of 1973, while working on Mess Duty as a Supply Clerk in the Mess Hall in Okinawa, I fell and sustained injuries. I slipped on some ice that was on the cooler floor while carrying a large crate of meat. I was not able to catch myself because both hands were being used carrying the heavy box of meat. I fell fast and hard to my left side. The box of meat (40 lbs.) hit me in the head hard, and my left shoulder, my head, and my left knee directly impacted the concrete floor hard. I experienced extreme pain in my head, left shoulder, and my neck. I had bruising all the way from left ear to my left elbow. I had difficulty getting my nose to stop bleeding. My vision became blurry in my right eye, and I began to have extreme headaches. I still have these problems. It was possibly as long as two weeks before I was transferred by air to the Hospital, Portsmouth, Virginia on 27 November 1973. I have noticed that the service treatment records lack documentation of the accident itself, and I ask that VA give me the benefit of the doubt that this accident did happen to me. The Board agrees with the Veteran that his service treatment records (STRs) "lack documentation of the accident itself." However, this is not the end of the inquiry. The Board first considered this appeal in December 2018. The appeal, beyond the seven issues listed above, also included a claim of entitlement to service connection for a psychiatric disorder. The Board remanded that claim, along with the seven issues listed above, for additional development. That additional development, as relevant here, included a VA examination. VA examined the Veteran for the psychiatric claim in July 2020. The AOJ determined that the July 2020 examination report required addenda, which were obtained in October 2020 and December 2020. The latter is relevant here. It states: Addendum to Examination Dated: 10/5/2020 Requested Clarification: The MH opinion is still insufficient. While the examiner opined the other stress disorder was aggravated by military service, they did not specifically state it was clearly and unmistakably aggravated beyond its natural progression? by military service and they still did not provide any rationale. Again, please address if the diagnosis was clearly and unmistakably aggravated beyond its natural progression by an in-service injury, event, or illness, and provide rationale explaining. Additionally, please address the prior 2016 exam diagnoses of anxiety disorder and explosive disorder-are these diagnoses resolved? Is the new diagnosis of other stress disorder a correction of those prior diagnosis, progression, or separate diagnosis? If they are separate, current diagnosis delineation of symptoms will be required. Clarification Response: The Veteran's claim file was reviewed. The veteran's Other Stress and Trauma Related Disorder is clearly and unmistakably aggravated beyond its natural progression by an in-service injury and event that occurred in 1972 Okinawa when the veteran fell and was medivaced to a hospital. He proceeded to have an explosive episode and was admitted to a psychiatric hospital. The 2016 exam diagnosed the veteran with anxiety disorder and explosive disorder and these diagnoses are subsumed by the Other Stress and Trauma Related Disorder diagnosis. The AOJ, based on the December 2020 addendum, service connected the Veteran's "other specified trauma and stressor related disorder" in a December 2020 rating decision. This rating decision did not expressly identify any favorable findings. Nevertheless, the AOJ based its grant on an implicit, favorable finding that the claimed in-service fall occurred. Put another way, without that finding, the AOJ could not have made the decision it did. Accordingly, the Board, and future adjudicators, are bound by this favorable finding, as there is not clear and unmistakable evidence to rebut it. 38 C.F.R. § 3.104. Therefore, the VA examinations for the seven issues listed above that the occurred after the Board's December 2018 Remand are inadequate because VA did not communicate this favorable finding to the examiners. Remand is thus warranted for new examinations or addendum opinions. Right Eye Disorder The Board, in December 2018, noted the precise nature of the Veteran's right eye disorder was unclear. It explained, in detail, why VA examination was needed to determine the nature and etiology of the right eye disorder, to include a determination as to whether it clearly and unmistakably existed prior to active service and was clearly and unmistakably not aggravated by active service; and, whether he has a right eye disorder that could be characterized as a congenital defect versus a congenital disease. VA examined the Veteran for the right eye claim in July 2020. The AOJ determined that the July 2020 examination report required addenda, which were obtained in October 2020 and December 2020. The latter is relevant here. It states: Best corrected vision of 20/50 OD prior to service. Documented in patients extremely vague history. No documented trauma during active duty. Patient has created a very vivid detail of what transpired to his right eye and has no documented active-duty medical record to support said history. His vision now is count fingers in the right eye of unknown etiology. Without documentable evidence of the trauma that he claims occurred during active duty, it is undeniable that the vision loss did not happen during active duty. Furthermore, an aggravation to a prior injury would have had to been documented as well. Given the AOJ's finding that the claimed in-service fall occurred, the opinion above is inadequate. The Board finds an addendum opinion will suffice to meet the narrow question of whether the in-service accident changes the examiner's opinion. Personnel Records The Board notes there are limited service personnel records in the claims file. Some of the customary documents, e.g., a listing of unit assignments, are not in these records. It is unclear if any additional personnel records are available, so the Board will remand to clarify if there are any outstanding personnel records. Social Security Administration (SSA) Disability Records An August 22, 1996 letter, available in the claims file as "Third Party Correspondence" with a receipt date of May 7, 1996, states the Veteran was applying for SSA disability benefits. Twenty years later, the Veteran, at an October 2016 VA psychiatric examination, reported: He said that he received gastric bypass surgery in 2000, and was out of work for a few years, receiving SSD. Veteran reported that after losing a significant amount of weight, he lost SSD, and went back to work with moving company for about 1 1/2 years, but said he was "let go" due to anger problems. Veteran said he was last employed at Walmart, working in the seafood department for approximately 2 years, prior to getting fired for "getting into it with my boss". He denied any employment since that time, and currently is drawing social security. Given these records, the Board finds remand is warranted to attempt to obtain the SSA records as they may bear on this appeal. The matters are REMANDED for the following action: 1. Attempt to obtain the Veteran's medical records and rulings associated with any Social Security Administration disability benefits. 2. Clarify whether the Veteran's service personnel records are complete or whether there are records which have not been associated with the claims file. Document all efforts made in this matter in the claims file. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed headache disorder. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should opine: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's claimed headache disorder began during, or was otherwise caused by, the Veteran's active service? Why or why not? The examiner MUST assume, for purposes of answering the question posed, that the Veteran fell in November 1973 as he has claimed. Specifically, the Veteran stated that while working as a supply clerk in the mess hall, he fell on his left side "fast and hard" after slipping on an icy cooler floor while carrying a large, heavy crate of meat. He recalled that the crate of meat hit him in the head and that he directly hit his head, left shoulder, and left knee on the concrete floor. Approximately two weeks later, he stated that he was medivacked from Okinawa to a Naval hospital in late November 1973. He added that since the in-service incident, he has had impaired vision in his right eye, constant headaches, pain in his neck and left shoulder, and panic attacks. The Board recognizes that there are no medical records to corroborate the Veteran's fall. Nevertheless, the examiner has NO discretion in this matter because VA has made a favorable finding that the fall occurred. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed left shoulder disorder. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should opine: a) Is it at least as likely as not (50 percent probability) that the Veteran's claimed left shoulder disorder began during, or was otherwise caused by, the Veteran's active service? Why or why not? The examiner MUST assume, for purposes of answering the question posed, that the Veteran fell in November 1973 as he has claimed. Specifically, the Veteran stated that while working as a supply clerk in the mess hall, he fell on his left side "fast and hard" after slipping on an icy cooler floor while carrying a large, heavy crate of meat. He recalled that the crate of meat hit him in the head and that he directly hit his head, left shoulder, and left knee on the concrete floor. Approximately two weeks later, he stated that he was medivacked from Okinawa to a Naval hospital in late November 1973. He added that since the in-service incident, he has had impaired vision in his right eye, constant headaches, pain in his neck and left shoulder, and panic attacks. The Board recognizes that there are no medical records to corroborate the Veteran's fall. Nevertheless, the examiner has NO discretion in this matter because VA has made a favorable finding that the fall occurred. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed left knee disorder. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should opine: a) Is it at least as likely as not (50 percent probability) that the Veteran's claimed left knee disorder began during, or was otherwise caused by, the Veteran's active service? Why or why not? The examiner MUST assume, for purposes of answering the question posed, that the Veteran fell in November 1973 as he has claimed. Specifically, the Veteran stated that while working as a supply clerk in the mess hall, he fell on his left side "fast and hard" after slipping on an icy cooler floor while carrying a large, heavy crate of meat. He recalled that the crate of meat hit him in the head and that he directly hit his head, left shoulder, and left knee on the concrete floor. Approximately two weeks later, he stated that he was medivacked from Okinawa to a Naval hospital in late November 1973. He added that since the in-service incident, he has had impaired vision in his right eye, constant headaches, pain in his neck and left shoulder, and panic attacks. The Board recognizes that there are no medical records to corroborate the Veteran's fall. Nevertheless, the examiner has NO discretion in this matter because VA has made a favorable finding that the fall occurred. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed bilateral hand disorder. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should opine: a) Is it at least as likely as not (50 percent probability) that the Veteran's claimed right hand disorder began during, or was otherwise caused by, the Veteran's active service? Why or why not? b) Is it at least as likely as not (50 percent probability) that the Veteran's claimed left hand disorder began during, or was otherwise caused by, the Veteran's active service? Why or why not? The examiner MUST assume, for purposes of answering the question posed, that the Veteran fell in November 1973 as he has claimed. Specifically, the Veteran stated that while working as a supply clerk in the mess hall, he fell on his left side "fast and hard" after slipping on an icy cooler floor while carrying a large, heavy crate of meat. He recalled that the crate of meat hit him in the head and that he directly hit his head, left shoulder, and left knee on the concrete floor. Approximately two weeks later, he stated that he was medivacked from Okinawa to a Naval hospital in late November 1973. He added that since the in-service incident, he has had impaired vision in his right eye, constant headaches, pain in his neck and left shoulder, and panic attacks. The Board recognizes that there are no medical records to corroborate the Veteran's fall. Nevertheless, the examiner has NO discretion in this matter because VA has made a favorable finding that the fall occurred. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed neck disorder. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should opine: a) Is it at least as likely as not (50 percent probability) that the Veteran's claimed neck disorder began during, or was otherwise caused by, the Veteran's active service? Why or why not? The examiner MUST assume, for purposes of answering the question posed, that the Veteran fell in November 1973 as he has claimed. Specifically, the Veteran stated that while working as a supply clerk in the mess hall, he fell on his left side "fast and hard" after slipping on an icy cooler floor while carrying a large, heavy crate of meat. He recalled that the crate of meat hit him in the head and that he directly hit his head, left shoulder, and left knee on the concrete floor. Approximately two weeks later, he stated that he was medivacked from Okinawa to a Naval hospital in late November 1973. He added that since the in-service incident, he has had impaired vision in his right eye, constant headaches, pain in his neck and left shoulder, and panic attacks. The Board recognizes that there are no medical records to corroborate the Veteran's fall. Nevertheless, the examiner has NO discretion in this matter because VA has made a favorable finding that the fall occurred. 8. Obtain an addendum opinion from the examiner who conducted the July 2020 eye examination and authored the October 2020 and December 2020 addendum opinions. If that medical professional is not available, obtain an addendum opinion from another qualified medical professional. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on a review of the record, the medical professional should opine: a) Is the Veteran's right eye disorder a congenital defect or disease? Regardless of the answer, please explain why. For VA purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia a congenital "disease" for VA purposes, whereas refractive error is considered a congenital "defect.") b) If the right eye disorder is a congenital DEFECT, is it at least as likely as not (50 percent probability) that there was a superimposed disease or injury during service? Why or why not? c) If, however, the right eye disorder is a congenital DISEASE, is there clear and unmistakable evidence (medically undebatable) that the right eye disorder preexisted service? Why or why not? d) If the answer to (c) is yes, is there clear and unmistakable evidence (medically undebatable) that the right eye disorder was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease? Why or why not? e) For any currently present right eye disability (disease or disability resulting from injury ONLY, is it at least as likely as not (50 percent or better probability) that any such disability is etiologically related to his active service. The examiner MUST assume, for purposes of answering the questions posed, that the Veteran fell in November 1973 as he has claimed. Specifically, the Veteran stated that while working as a supply clerk in the mess hall, he fell on his left side "fast and hard" after slipping on an icy cooler floor while carrying a large, heavy crate of meat. He recalled that the crate of meat hit him in the head and that he directly hit his head, left shoulder, and left knee on the concrete floor. Approximately two weeks later, he stated that he was medivacked from Okinawa to a Naval hospital in late November 1973. He added that since the in-service incident, he has had impaired vision in his right eye, constant headaches, pain in his neck and left shoulder, and panic attacks. The Board recognizes that there are no medical records to corroborate the Veteran's fall. Nevertheless, the examiner has NO discretion in this matter because VA has made a favorable finding that the fall occurred. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.