Citation Nr: 21066753 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-05 772A DATE: November 2, 2021 REMANDED Entitlement to service connection for a left elbow disorder is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1976 to April 1980 with additional service in the Reserve from September 1981 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2013 by a Department of Veterans Affairs (VA) Regional Office In September 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In January 2020, the Board remanded the Veteran's claims for service connection for residuals of rhinoplasty, a neck disorder, a back disorder, a left elbow disorder, a bilateral hand disorder, right forearm scar, a left hip disorder, left hip keloid scar, hemorrhoids, and a bilateral knee disorder for additional development. While on remand, an August 2021 rating decision awarded service connection for allergic rhinitis, nasal septal deformity status post rhinoplasty, and a September 2021 rating decision awarded service connection for degenerative arthritis of the thoraco-lumbar spine and spondylolisthesis; degenerative arthritis of the cervical spine; right hand strain; left hand degenerative arthritis; osteoarthritis of the left hip, status post total left hip arthroplasty; left hip keloid scar; hemorrhoids; and right forearm scar. As such are full grants of the benefits sought on appeal with respect to these issues, such are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The remaining issues now return for further appellate review. 1. Entitlement to service connection for a left elbow disorder. 2. Entitlement to service connection for a bilateral knee disorder. As noted in the January 2020 remand, the Veteran contends that she developed the claimed left elbow and bilateral knee disorders as a result of the cumulative effect of the performance of her reservist duties as a storekeeper and required physical training. Specifically, she asserts that she developed her bilateral knee disorder based on the cumulative impact of years of performing her duties, to include lifting and carrying heavy objects as well as going up and down stairs, and participating in physical training, to include running and marching. The Veteran further claims that her left elbow disorder is a result of her reservist clerical duties. At the time of the January 2020 remand, the only medical opinion of record addressing the etiology of the Veteran's claimed disorders was Dr. G.B.'s November 2019 private medical opinion; however, as such opinion had an unclear factual premise, the Board found that such was inadequate to adjudicate the instant claims. Specifically, Dr. G.B. made broad conclusions that the Veteran's service treatment records (STRs) reflected in-service incurrence of all of her claimed disorders, without citing any specific documents in support of this conclusion. Accordingly, the Board remanded the claims to obtain a VA opinion addressing the etiologies of such claimed disorders. While October 2020 and September 2021 VA opinions obtained on remand addressed the instant claims, the Board finds such opinions to be inadequate to decide the claims. In this regard, such opinions found that there was no evidence of record indicating that the Veteran had a current diagnosis of a left elbow disorder and, as such, the examiner did not offer an etiological opinion. However, Naval Medical Center records shows a diagnosis of left elbow tendonitis from August 5, 2011, i.e., the month before the Veteran filed her claim for service connection for a left elbow disorder, and she has consistently reported ongoing left elbow symptomatology. Thus, a remand is necessary in order to obtain an addendum opinion addressing whether the Veteran has a left elbow disability at any time proximate to her claim, to include as a result of functional impairment of earning capacity, and, if so, whether such is related to her military service. Regarding the Veteran's bilateral knee disorder, the unfavorable October 2020 VA opinion was based solely on a finding that her STRs were negative for evidence of a knee condition and did not address whether such disorder was related to a disease or injury sustained during a period of active duty for training (ACDUTRA) or an injury sustained during a period of inactive duty for training (INACDUTRA), to specifically include the cumulative effect of her duties as a storekeeper, performing clerical duties in a sedentary capacity, and participating in physical training. Thus, the case was referred for an addendum opinion to address such matters. Thereafter, in the September 2021 opinion, the examiner found that the cumulative effect of the Veteran's in-service duties, to include lifting and carrying heavy objects, going up and down stairs, performing clerical duties, and participating in physical training for many years subjected her joints to wear and tear and, in light of documented in-service complaints, treatment, and diagnoses, found that her back, hand, and hip disorders were more likely than not due to such in-service activities. However, as the Veteran's STRs were negative for any relevant complaints, treatment, or findings, she found that her bilateral knee disorder was less likely than not related to her military service. However, in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the U.S. Court of Appeals for Veterans Claims determined that an examination was inadequate where the examiner did not comment on a veteran's reports of in-service injury and instead relied on the absence of evidence in his service treatment records to provide a negative opinion. Consequently, a remand is necessary in order to obtain an addendum opinion addressing the etiology of the Veteran's bilateral knee disorder that does not rely solely on the absence of relevant findings in her STRs. The matters are REMANDED for the following action: Forward the record, to include a copy of this remand, to the October 2020/September 2021 examiner, or an appropriate VA clinician if she is unavailable, to obtain an addendum opinion addressing the etiology of the Veteran's claimed left elbow and bilateral knee disorders. Following a review of the record, the examiner should address the below inquires: (A) Identify all current left elbow and bilateral knee disorders that have been present at any time proximate to the Veteran's September 2011 claim, even if such are asymptomatic or have resolved. If the examiner finds that the Veteran does not have a current left elbow disorder, he or she should reconcile such determination with the August 5, 2011, diagnosis of left elbow tendonitis as shown in Naval Medical Center records. If the examiner still finds that the Veteran does not have a current left elbow disorder, he or she should offer an opinion as to whether her reported symptomatology results in functional impairment of earning capacity. If so, he or she is advised that the Veteran has a current left elbow disability for VA compensation purposes. (B) For each left elbow and/or bilateral knee disability found to be present, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is related to a disease or injury sustained during a period of ACDUTRA or an injury sustained during a period of INACDUTRA, to specifically include the cumulative effect of the Veteran's duties as a storekeeper, to include lifting and carrying heavy objects, going up and down stairs, and performing clerical duties in a sedentary capacity, and participating in physical training, to include running and marching. The examiner is advised that the sole basis of an unfavorable opinion cannot be the lack of documentation in the STRs, and is asked to consider and comment on the clinical significance of the following reservist STRs: February 2003 medical history report of left elbow pain; February 2004 and June 2004 treatment for osteopenia and osteoporosis; January 2005 medical history report of a painful shoulder, elbow or wrist, as well as arthritis, rheumatism or bursitis and bone, joint or other deformity (DEXA scan revealed osteoporosis); and June 2005 waiver for running/high impact aerobics, noting osteoporosis could be exacerbated by this activity. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.