Citation Nr: 21068155 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 09-48 450 DATE: November 9, 2021 REMANDED Service connection for right knee disability is remanded. Service connection for left knee disability is remanded. Service connection for lumbar spine degenerative joint disease and disc disease ("low back disability") is remanded. Service connection for left sided cervical paraspinal denervation, claimed as left shoulder numbness/spasms ("left shoulder disability") is remanded. Service connection for left leg radiculopathy and history of hip bursitis, claimed as left leg/hip numbness/spasms ("left leg/hip disability") is remanded. REASONS FOR REMAND At the outset, the Board acknowledges that as requested by the directives an examiner provided opinions regarding correlation between the Veteran's disabilities and fibromyalgia. However, the Board recognizes that to date the Veteran is not service connected for her fibromyalgia and after opting into the RAMP program in March 2018, the Regional Office (RO) issued a rating decision in July 2018, denying the claim. The Veteran did not appeal that decision. As such, and as a matter of judicial efficiency, the Board will not again request opinions related to the Veteran's fibromyalgia. Entitlement to service connection for an acquired psychiatric disability, insomnia, and cervical spine degenerative joint disease and disc disease ("neck disability") were originally on appeal as well. However, in an April 2021 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) as well as service connection for degenerative joint disease, disc disease, cervical spine, radiculopathy of the right upper extremity and radiculopathy of the left upper extremity. The RO acknowledged that the grant of service connection for PTSD stemmed from the claims of depression and insomnia. As such, the service connection grant for PTSD represents a full grant of benefits for both the acquired psychiatric disability claim and the insomnia claim. As referenced above the RO separately granted service connection for three disabilities affecting the neck, representing a full grant of benefits. Accordingly, these issues are no longer before the Board. The only remaining issues on appeal are issues listed on the title page. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated September 2008 and September 2010. The Board remanded these matters three timesin January 2013, October 2013, and in April 2018. Upon review of the claim file, the Board finds that there has not been substantial compliance of the remand directives and therefore another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). Given the current opinions of record the Board finds that an additional in-person examination will assist in providing information necessary for the service connection issues on appeal. A September 2019 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) indicates a September 2019 diagnosis of degenerative arthritis of both the right knee and left knee. A September 2019 diagnosis of chondromalacia of the right knee was also indicated. Another VA examiner indicated an in-person examination and performed a Medical Opinion DBQ in October 2019. The examiner provided negative opinions for both the right knee and left knee. The rationale provided is not sufficient in that the examiner relied on negative evidence, failed to address specific records as required by the remand directives, and referred to two specific medical records that the Board cannot locate in the file (records dated 1983 and 1986 where the examiner claims show the Veteran denied issues with her knees). For these reasons, an additional remand is needed. A September 2019 VA Back Conditions DBQ indicates a September 2019 diagnosis of degenerative arthritis of the spine. Another VA examiner indicated an in-person examination and performed a Medical Opinion DBQ in October 2019. The examiner provided negative opinions, stating that the low back disability is not related to service, nor to the Veteran's non-service-connected bilateral knee disabilities or fibromyalgia. The rationale provided for the opinion regarding direct theory of entitlement is not sufficient in that the examiner relied on negative evidence. The examiner technically provided separate rationale for causation and aggravation regarding secondary theory of entitlement for the Veteran's bilateral knee disability. However, a read of the rationale provided suggests that these are identical and merely resulted in a copy and paste action. For these reasons, an additional remand is needed. A September 2019 VA Shoulder and Arm Conditions DBQ indicates a September 2019 diagnosis of impingement syndrome, subacromial/subdeltoid bursitis, and degenerative arthritis of the left shoulder. Another VA examiner indicated an in-person examination and performed a Medical Opinion DBQ in October 2019. The examiner opined that the Veteran's shoulder disability is not related to service. The opinion is conclusory and provides little to no rationale, relying solely on the lack of evidence. The examiner did opine as to whether the Veteran's left shoulder disability was proximately due to her bilateral knee disability. However, this rationale is also inadequate, and the examiner did not provide an opinion on aggravation. For all these reasons, an additional remand is needed to obtain adequate medical opinions. Also, of note, as stated above, the Veteran is now service connected for three separate disabilities impacting her neck. As the matter is being remanded the Board will request clarification, first as to whether her left shoulder disabilities are separate and distinct from her neck disabilities and if they are, the examiner will be asked to provide opinions to describe the correlation between the Veteran's left shoulder disabilities and her service-connected neck disabilities. A September 2019 VA Hip and Thigh Conditions DBQ indicates a September 2019 diagnosis of trochanteric pain syndrome, degenerative arthritis, and pyriformis syndrome of the left. Another VA examiner indicated an in-person examination and performed a Medical Opinion DBQ in October 2019. The examiner opined that the Veteran's left hip/thigh disability is not related to service. The opinion is conclusory and provides little to no rationale, relying solely on the lack of evidence. The examiner also provided opinions regarding the bilateral knee disability and its causation and or possible aggravation on the left hip disabilities. As the rationale provided is also based on lack of evidence, additional opinions are required. The matters are REMANDED for the following action: 1. Schedule an appropriate VA examination to determine the nature and etiology of the Veteran's bilateral knee disabilities, preferably with an examiner who has not been involved in this case previously. The claim file and a copy of this remand must be made available to the examiner for review. This examination can be in person or virtual. The examiner who performs the examination of the Veteran is the examiner who should provide the requested opinions. The examiner should review the claim file (including this remand) and note such review was conducted. The examiner should identify all current knee disabilities, found at any time during the appeal period (from February 2010). For each currently diagnosed disability, to the extent possible, the examiner is requested to opine as to when that particular knee disability first manifested. If any previously diagnosed right knee or left knee disability, to include the prior diagnoses of osteoarthritis, mild chondromalacia patella, IT band syndrome, and any internal derangement of the knee, is not found on examination, the examiner must address the prior diagnoses of record and indicate whether they may have resolved or been misdiagnosed. Specifically, the examiner must note review of the following five (5) documents and explicitly state whether these diagnoses are accurate, whether they should be considered resolved, or whether they constitute misdiagnoses: (a.) A June 2010 private imaging report of the right knee indicating diagnosis of degenerative type signal in the posterior horn of the medial meniscus (VBMS, document labeled Medical Treatment Record-Government Facility, receipt date May 20, 2011, page 9 of 40). (b.) An October 2010 private imaging report of the left knee indicating diagnosis of mild chondromalacia patella and thickening of the distal IT band raising the possibility of IT band syndrome (VBMS, document labeled Medical Treatment Record-Government Facility, receipt date May 20, 2011, page 4 of 40). (c.) An October 2010 private medical report indicating diagnosis of unspecified internal derangement of knee suspicious for tendon or ligament rupture (VBMS, document labeled Medical Treatment Record-Government Facility, receipt date May 20, 2011, page 24 of 40). (d.) A November 2010 and February 2011 private medical reports both indicating a review of both knees and assessing concern about ITB syndrome and diagnosis of unspecified internal derangement (VBMS, document labeled Medical Treatment Record-Government Facility, receipt date May 20, 2011, pages 30 and 38 of 40). (e.) A December 2010 private medical report of both knees indicating trochanteric bursitis, spasm of muscle, and unspecified internal derangement of knee (VBMS, document labeled Medical Treatment Record-Government Facility, receipt date May 20, 2011, page 32 of 40). The examiner should be directed to elicit a complete history from the Veteran, and to account for her reported history in the opinion. Following review of the claim file and examination of the Veteran, the examiner should provide opinions that respond to the following: (f.) Whether it is at least as likely as not (i.e., probability of 50 percent) that any diagnosed knee disability of the right and left knee manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service, to include as due to her fall after jumping from a truck while in service. (g.) The examiner is requested to account for the Veteran's competent reports that she injured both knees while jumping off of a truck in-service, and that she has experienced continuous knee symptomatology since that time. (h.) The examiner is requested to comment and account for in his/her opinion the March 1980 and April 1980 service treatment records indicating medial meniscus tear in the right knee, and pain and swelling of the right knee, and clearly discuss what, if any, this diagnosis and noted symptom in service has to any currently diagnosed knee disabilities. This record is located at: VBMS, document labeled STR, receipt date January 26, 2010, pages 1, 4, and 5 of 47. 2. Schedule an appropriate VA examination to determine the nature and etiology of the Veteran's left shoulder, left leg/hip, and low back disabilities, preferably with an examiner who has not been involved in this case previously. The claim file and a copy of this remand must be made available to the examiner for review. This examination can be in person or virtual. The examiner who performs the examination of the Veteran is the examiner who should provide the requested opinions. The examiner should review the claim file (including this remand) and note such review was conducted. The examiner should be directed to elicit a complete history from the Veteran. Following review of the claim file and examination of the Veteran, the examiner should provide an opinion regarding the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's left shoulder disability is a symptom of her service-connected degenerative joint disease, disc disease, cervical spine, or her service-connected radiculopathy of the right upper extremity, or her service-connected radiculopathy of the left upper extremity, or whether it is a distinct disability. (b.) If it is determined that the left shoulder disability is a distinct disability, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's left shoulder disability manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service, to include as due to her fall after jumping from a truck while in service. (c.) If it is determined that the left shoulder disability is a distinct disability, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's left shoulder disability is proximately due to or caused by her service-connected disabilities, to include her service-connected cervical spine disability, service-connected radiculopathy, or her non-service-connected bilateral knee disability. (d.) If it is determined that the left shoulder disability is a distinct disability, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's left shoulder disability was aggravated (worsened in severity beyond a natural progression) by her service-connected disabilities, to include her service-connected cervical spine disability, service connected radiculopathy, or her non-service connected bilateral knee disability. (e.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's left leg/hip disability manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service, to include as due to her fall after jumping from a truck while in service. (f.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's left leg/hip disability is proximately due to or caused by her service-connected disabilities, to include her service-connected cervical spine disability, service-connected radiculopathy, or her non-service-connected bilateral knee disability. (g.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's left leg/hip disability was aggravated (worsened in severity beyond a natural progression) by her service-connected disabilities, to include her service-connected cervical spine disability, service-connected radiculopathy, or her non-service-connected bilateral knee disability. (h.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's low back disability manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service, to include as due to her fall after jumping from a truck while in service. (i.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's low back disability is proximately due to or caused by her service-connected disabilities, to include her service-connected cervical spine disability, service-connected radiculopathy, or her non-service-connected bilateral knee disability. (j.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's low back disability was aggravated (worsened in severity beyond a natural progression) by her service-connected disabilities, to include her service-connected cervical spine disability, service-connected radiculopathy, or her non-service-connected bilateral knee disability. Any opinion offered must be supported by a complete rationale. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The AOJ should review the opinions provided and ensure that the examiner's opinions are compliant with the remand directives. 4. If upon completion of the above requested development the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.