Citation Nr: 21067998 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 16-50 643 DATE: November 8, 2021 REMANDED Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for a left ankle condition is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1994 to April 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in September 2019. The Board remanded this matter in January 2020, December 2020, and May 2021 for additional development. The matter is now returned to the Board for further appellate review. 1. Entitlement to service connection for a right shoulder condition is remanded. The Veteran contends his right shoulder disability began in or is otherwise due to his military service, to include falling approximately 40 feet during rappelling training. The Board remanded this matter in May 2021 to obtain a medical opinion addressing the etiology of the Veteran's right shoulder condition, finding the previous opinion of record to be inadequate. VA obtained a nexus opinion in June 2021. Unfortunately, it is inadequate to adjudicate the Veteran's claim. The June 2021 examiner reported the Veteran's right shoulder diagnoses include impingement and acromioclavicular arthritis, post Mumford Procedure. The June 2021 examiner provided a negative nexus opinion, in part, because the Veteran's right shoulder conditions were the result of post-service right arm overhead repetitive use during the Veteran's employment as a tree trimmer and machinist. The Veteran testified at the September 2019 Board hearing his duties as a machinist allowed him to stand and sit while performing his work and his duties as a tree trimmer were conducted in a bucket lift. There is no evidence addressing any right hand dominant overhead activities. In an unrelated October 2014 VA examination, the examiner reported the Veteran worked as a shop helper, then as a machinist, and then worked in an office setting for the same company. The examiner also reported the Veteran worked as a food deliveryman until approximately 2016 or 2017. In an unrelated March 2017 VA examination, the examiner reported the Veteran worked at a manufacturing company from 1998 to 2006, trimmed trees from 2009 to 2012, and worked as a food deliveryman from 2015 to 2017. There is no description of the Veterans duties or working conditions as either a machinist or tree trimmer; however, the evidence of record established the Veteran was able to sit while employed as a machinist, worked in an office setting for the machine shop, worked in a bucket lift trimming trees, and delivered food. None of the evidence suggests the Veteran's duties included repetitive over-head movement. Absent a job description and a description of the working conditions of the post service employment as a machinist and tree trimmer, attributing the Veteran's right shoulder disability to post-service work is speculation. Moreover, the examiner reported medical literature does not support a nexus between the Veteran's right shoulder disability and the rappelling incident; however, the examiner did not identify the medical literature nor explain how it applies to the Veteran and his particular circumstances. See Barr v. Nicholson, 21 Vet. App. 303, 311; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned). Lastly, VA's duty to assist requires reasonable efforts to ensure all relevant treatment records have been obtained and associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). In September 2019 the Veteran submitted a letter from his chiropractor, T.W., D.C. Dr. T.W. reported he treated the Veteran for injuries sustained from a 40-foot fall during a rappelling incident. However, the Veteran's chiropractic treatment records are not associated with the claims file and there is no indication VA has attempted to obtain them. VA must attempt to obtain the records as they are relevant to the Veteran's claim. Id. 2. Entitlement to service connection for a right ankle condition is remanded. 3. Entitlement to service connection for a left ankle condition is remanded. The Veteran contends his right and left ankle conditions began in or are otherwise due to his military service, to include falling approximately 40 feet during rappelling training. The Board remanded this matter in May 2021 to obtain medical opinions addressing the etiology of the Veteran's right and left ankle conditions, finding the previous opinions of record to be inadequate. VA obtained nexus opinions in June 2021. Unfortunately, they are inadequate to adjudicate the Veteran's claim. The June 2021examiner reported the Veteran does not have a current right ankle disability and provided a negative nexus opinion for both the Veteran's right ankle pain and stiffness symptoms and left ankle condition. The examiner attributed the Veteran's right and left ankle conditions to "...aging, weight-bearing activities, including work and any activity." See June 2021 VA Medical Opinion. The examiner, however, does not explain why the Veteran's right ankle pain and stiffness and left ankle condition are more likely due to post service factors instead of the rappelling incident nor explain what other activities the Veteran engaged in, which are more likely responsible for his right and left ankle conditions. The examiner also reported medical literature does not support a nexus between the Veteran's right ankle pain and stiffness and left ankle condition and the rappelling incident; however, the examiner did not identify the medical literature nor explain how it applies to the Veteran and his particular circumstances. See Barr, 21 Vet. App. at 311; see also Nieves-Rodriguez, 22 Vet. App. at 304. In addition, the examiner relied, in part, on the absence of right and left ankle injury notations and associated medical records but did not explain why the absence of documented complaints or treatment (as opposed to symptoms) was medically significant. Specific to the Veteran's left ankle, the examiner reported the Veteran's left ankle condition is not a result of a documented in-service left heel contusion, in part, because there is insufficient evidence to support a causal relationship between mild degenerative arthritis and an injury to the left heel twenty-five years earlier. Moreover, the examiner reported the Osan Air Base Emergency Department records did not contain X-ray documentation of a left ankle or left heel fracture. See McKinney v. McDonald, 28 Vet. App.15, 30 (2016); Fountain v. McDonald, 27 Vet. App.258, 272-75 (2015). In addition to the chiropractic records mentioned above, the Veteran's VA treatment records indicate he received non-VA treatment from a podiatrist for his left foot. See October 2019 VA Primary Care Provider Note. The Veteran's podiatry treatment records are not associated with the claims file and there is no indication VA has attempted to obtain them. VA must attempt to obtain the records as they are relevant to the Veteran's claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan, 815 F.3d 786. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any chiropractic or podiatry treatment provider which may have records related to the Veteran's right shoulder, right ankle, and left ankle treatment. Make two requests for the authorized records from any medical care provider or facility identified unless it is clear after the first request that a second request would be futile 2. Obtain an opinion from an appropriate clinician to determine whether the Veteran's right shoulder condition, to include impingement and acromioclavicular arthritis, post Mumford Procedure, is related to the Veteran's military service, to include the in-service fall incurred during rappelling training. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder condition, to include impingement and acromioclavicular arthritis, post Mumford Procedure, began in or is otherwise related to the Veteran's active service, to include the Veteran's lay statements regarding falling approximately 40 feet during rappelling training. These contentions may not be dismissed by the clinician solely because they are not documented in the Veteran's service treatment records and any negative opinion must be supported by a rationale that goes beyond simply noting that a specific in-service injury is not documented in treatment records. The examiner should address any other pertinent evidence of record. If the examiner references medical literature to support his or her opinion, the examiner must identify the medical literature used to support the opinion. If the examiner finds the Veteran's right shoulder conditions are due to post-service factors, such as aging or post-service employment, rather than military service, the examiner must explain why the right shoulder condition would be MORE likely due to aging or some other post-service factor rather than the Veteran's active-duty service, including the 40-foot fall. 3. Obtain an opinion from an appropriate clinician regarding the etiology of the Veteran's right ankle condition, to include pain and stiffness. If the examiner determines that an additional in-person examination is required, one should be scheduled. If a diagnosis cannot be provided but the Veteran's condition manifests in pain and stiffness symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. If the pain and stiffness results in functional loss, the clinician must opine whether the pain and stiffness are at least as likely as not (50 percent probability or greater) related to the Veteran's active-duty service, to include the in-service fall during rappelling training. The examiner may not dismiss the Veteran's contention of an in-service fall incurred during rappelling training solely on the basis that it is not documented in contemporaneous treatment records. The clinician must address the Veteran's lay statements regarding symptoms in and since service. In light of the Veteran's contentions of ongoing right ankle symptoms in and since service, the examiner should not rely on silence in the medical records unless it can be explained why the symptoms would normally have been recorded if present or why the absence of medical records is medically significant. If the examiner references medical literature to support his or her opinion, the examiner must identify the medical literature used to support the opinion. If the examiner finds the Veteran's right ankle condition is due to post-service factors, such as aging or post-service employment, rather than military service, the examiner must explain why the right ankle condition would be MORE likely due to aging or some other post-service factor rather than the Veteran's active-duty service, including the 40-foot fall. 4. Obtain an opinion from an appropriate clinician to determine whether the Veteran's left ankle condition, to include degenerative arthritis, is related to his military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ankle condition, to include degenerative arthritis, began in or is otherwise related to the Veteran's active service, to include the Veteran's lay statements regarding falling approximately 40 feet during rappelling training OR documented left heel injury. These contentions may not be dismissed by the clinician solely because they are not documented in the Veteran's service treatment records and any negative opinion must be supported by a rationale that goes beyond simply noting that a specific in-service injury is not documented in treatment records. The examiner should address any other pertinent evidence of record. The clinician must address the Veteran's lay statements regarding symptoms in and since service. In light of the Veteran's contentions of ongoing left ankle symptoms in and since service, the examiner should not rely on silence in the medical records unless it can be explained why the symptoms would normally have been recorded if present or why the absence of medical records is medically significant. If the examiner references medical literature to support his or her opinion, the examiner must identify the medical literature used to support the opinion. If the examiner finds the Veteran's left ankle is due to post-service factors, such as aging or post-service employment, rather than military service, the examiner must explain why the left ankle condition would be MORE likely due to aging or some other post-service factor rather than the Veteran's active-duty service. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.