Citation Nr: 21068323 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-02 145 DATE: November 10, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for benign prostatic hypertrophy (BPH) is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for bilateral hip disorders is remanded. Entitlement to service connection for neuropathies of any extremities is remanded. Entitlement to service connection for glaucoma and cataracts is remanded. Entitlement to service connection for a heart disorder is remanded. Entitlement to service connection for bilateral knee disorders is remanded. Entitlement to service connection for bilateral ankle disorders is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1960 to March 1962. He was in the National Guard and then the Reserves until his retirement from the Reserves in 2000. The Department of Veterans Affairs (VA) is grateful for his service. The case was remanded by the Board of Veterans' Appeals (Board) in March 2018, and the Board then denied the appealed claims in an August 2019 decision. The Veteran appealed that decision as to all the claims, and by an October 2020 Memorandum Decision the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision for the above-listed claims based on the VA examinations on which the Board relied not having considered the Veteran's work in service as a combat engineer, contrary to the Board's March 2018 remand instructions. (As the Court noted, this was particularly relevant in light of the absence of service treatment records.) (The Court affirmed the Board's denial of service connection for diabetes mellitus.) In May 2021, the Board remanded the appealed claims for additional development consistent with the Memorandum Decision. Regrettably, as discussed below, development following the Board's May 2021 remand was inadequate, necessitating remand again for further development. The Board had also remanded a claim for service connection for tinea pedis, but that claim was favorably resolved by an August 2021 VA Regional Office decision. 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for BPH is remanded. 3. Entitlement to service connection for a cervical spine disorder is remanded. 4. Entitlement to service connection for a lumbar spine disorder is remanded. 5. Entitlement to service connection for bilateral hip disorders is remanded. 6. Entitlement to service connection for neuropathies of any extremities is remanded. 7. Entitlement to service connection for glaucoma and cataracts is remanded. 8. Entitlement to service connection for a heart disorder is remanded. In May 2021, the Board remanded for new VA opinions which considered the Veteran's work as a combat engineer in service. While addenda or new examinations were obtained following the May 2021 remand, the examiners failed to consider the Veteran's work as a combat engineer in service when providing a rationale to support negative opinions against entitlement to service connection for hypertension, BPH, a cervical spine disorder, a lumbar spine disorder, bilateral hip disorders, neuropathies of any extremities, glaucoma and cataracts, and a heart disorder. Hence, the Board's remand instructions were not substantially fulfilled, and regrettably remand of these claims for opinions with rationales considering the Veteran's work in service as a combat engineer is still required. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). 9. Entitlement to service connection for bilateral knee disorders is remanded. 10. Entitlement to service connection for bilateral ankle disorders is remanded. Service treatment records are not available, but National Guard physical examinations in June 1981, October 1986, March 1991, January 1995, and February 2000 provide no history of injury or finding of disability of either knee or either ankle. A VA examination was conducted in August 2021 addressing the Veteran's claimed knee and ankle disabilities. At this examination, the examiner considered the Veteran's role as combat engineer in service, and hence that requirement from the Board's May 2021 remand was fulfilled. At the August 2021 examination, the Veteran provided a history of twisting his right ankle at the end of a weekend drill when in the Reserves, which he reported occurred on a Sunday in the afternoon. He reported that he went home the same day, that he could not continue the training, and that he was helped off the field by fellow soldiers. He added that he went to a local hospital, Caguas Sub Regional Hospital, Puerto Rico, a day or two later, and x-rays revealed that he had fractured the right ankle. He further reported that no record of line of duty was made because the weekend drill was finishing when he became injured. He informed that this occurred at Camp Santiago, but he did not recall the year. The Veteran denied any left ankle complaint or left ankle injury related to military service. The examiner found that it was at least as likely as not that the Veteran's current arthritis of the right ankle was causally related to the Veteran's reported injury during Reserves training. The examiner explained that ankle injury could lead to arthritis of the ankle. However, the examination opinion is inadequate in multiple respects. The examiner failed to note the Veteran's VA examination in November 2018 when the Veteran reported occasional mild pain in both ankles and occasional swelling in both ankles but did not report any history of trauma to the ankles. The November 2018 examination report reviewed x-rays with assessed bilateral calcaneal spurs of both ankles with demineralization but without assessed abnormalities suggesting an old fracture of the right ankle. The examiner also failed to note an April 2003 VA treatment for left ankle pain with an assessed probable left ankle spur. The examiner also failed to review or address National Guard physical examinations in June 1981, October 1986, March 1991, January 1995, and February 2000, none of which provide a history of injury or finding of disability of either ankle. The examiner also failed to compare the ankles, as would be reasonable to do to ascertain whether arthritis in one ankle was different from arthritis in the other ankle, to support the presence of traumatic arthritis in one ankle. See Corriea v. McDonald, 28 Vet. App. 158 (2016). In short, the examiner appears to have merely accepted the Veteran's self-report of a history of right ankle fracture without consideration of any more objective historic evidence weighing against this self-reported history. Thus, the ankle examination opinion is deficient for failing to address or consider relevant evidence. A medical opinion is inadequate if it relies on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). An adequate examination must support its conclusion with an analysis that can be weighed against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The August 2021 VA examiner found that the left knee was normal, and noted that the Veteran denied an injury, condition, or complaint of the left ankle related to service. The examiner then explicitly not provide a nexus opinion for the left ankle on the basis that "his left ankle was not injured or did not develop a condition or pain during any military drill or training." However, the examiner failed to note that a November 2018 VA examiner had found calcaneal spurs to be present bilaterally, and that at the November 2018 examination the Veteran reported having occasional mild pain in both ankles and occasional swelling. The August 2021 examiner thus failed to note the prior history of left ankle disability and failed to provide a nexus opinion for left ankle disability previously identified. In a submitted statement dated in January 2016, the Veteran reported that he had knee pain from service and that he continued to have this "same condition" from 1962 to the present. At a September 2016 VA treatment for painful right knee, the Veteran denied a history of trauma. At a November 2018 VA examination for the Veteran's knees, the examiner noted that degenerative arthritis was diagnosed in the right knee from 2006 and in the left knee from 2016, and that the Veteran reported having longstanding severe, constant bilateral knee pain. At an August 2021 VA examination, the Veteran first provided a history of injury to the right knee in Reserves training, asserting that this occurred during annual training when he was getting into a truck and his knee hit the door to the truck with resulting swelling and pain in the knee. The Veteran added that he had knee pain and stiffness which continued over the years. Again, based on this self-reported history and without apparent consideration of contrary evidence including National Guard physical examinations in June 1981, October 1986, March 1991, January 1995, and February 2000, the examiner opined that the Veteran's right knee disability was causally related to the self-reported injury in Reserves training. The examiner explained that medical literature supported that "strong trauma to a joint can, over time, evolve into or cause [degenerative joint disease] to develop in the affected joint." The examiner also failed to compare the condition of the right knee with that of the left knee. Thus, the August 2021 examiner's opinion for the right knee was based on an inadequate factual basis. Reonal, 5 Vet. App. at 461. The August 2021 examiner diagnosed arthritis in both knees, plus genu varus in the right knee, but failed to provide a complete examination for each knee, with essentially full examination of the right knee and only noting that range of motion was abnormal in the left. The examiner accepted the Veteran's self-report of injury to the right knee in Reserves training to provide a positive nexus opinion. However, the examiner failed to provide an opinion on the question of service-related nexus for the left knee, instead merely noting, "He states the right knee was injured in a [sic] Army reserve annual training but his left knee was not injured or [sic] did it develop a condition or pain during any military drill or training, therefore a medical opinion is not given for the knee DJD by x-ray." Thus, while the August 2021 examiner's nexus opinion for the right knee was based on inadequate factual premises, a nexus opinion for the left knee was simply not provided. The Veteran's statements of injury to the right ankle in Reserves training and injury to the right knee also in Reserves training are of questionable credibility based on apparent contradiction by more objective evidence of record as well as based on the Veteran's contradictory self-reported history at a September 2016 treatment of no history of trauma to the knee. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Due to inadequacy of the August 2021 examinations with significantly deficient opinions and rationales, new examination opinions are required with rationales duly considering both the Veteran's impaired credibility and contrary evidence, for both knees and the right ankle. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 11. Entitlement to service connection for an acquired psychiatric disorder is remanded. Upon VA psychiatric examination in August 2021, the examiner reviewed the records, examined the Veteran, and found that the record did not support any history of psychiatric disability and current examination also did not support a psychiatric disability. However, in its May 2021 remand the Board required that the examiner address the June 2015 private medical opinion of Dr. M. Q., which the May 2021 VA examiner failed to do. Accordingly, remand is required for an addendum opinion with consideration of that private medical opinion. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). 12. Entitlement to a TDIU is remanded. The claim for TDIU is inextricably intertwined with the other claims the subject of appeal, and accordingly must also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any unobtained VA and relevant private treatment records, with the Veteran's authorization and assistance, as appropriate. If any records cannot be obtained, the Veteran should be appropriately notified. 2. Obtain addendum medical opinions for the examinations conducted in August 2021 addressing claimed hypertension, BPH, a cervical spine disorder, a lumbar spine disorder, bilateral hip disorders, neuropathies of any extremities, glaucoma and cataracts, and a heart disorder. If addendum opinions cannot be obtained, then new examinations must be conducted. The claims file must be reviewed. The examiners should be informed that the August 2021 examination opinions were deficient due to failure of the rationale supporting the opinion provided to consider the Veteran's history of work as a combat engineer during active service. This was required by an October 2020 United States Court of Appeals for Veterans Claims decision. The examiner should also consider past treatment and examination records. While service treatment records are missing, the examiner should consider the National Guard physical examinations in June 1981, October 1986, March 1991, January 1995, and February 2000, which are contained in the claims file. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. Separately for hypertension, BPH, a cervical spine disorder, a lumbar spine disorder, bilateral hip disorders, neuropathies of any extremities, glaucoma and cataracts, and a heart disorder, the examiner(s) must provide a medical opinion addressing whether it is at least as likely as not (50 percent or greater probability) that the disability developed in service or was otherwise causally related to service. For any arthritis, the examiner(s) should also opine whether it is at least as likely as not (50 percent or greater probability) that the disability was present to a disabling degree within a year of the Veteran's service separation in March 1962. Again, separate opinions must be provided for each disability. The examiner must provide an explanation (rationale) for each opinion supported by evidence and medical knowledge. Each of these explanations must include consideration of the Veteran's work as a combat engineer in service, and must address the June 2015 private medical opinion of Dr. M.Q. 3. Obtain addendum medical opinions for the examinations conducted in August 2021 addressing claimed bilateral knee conditions and bilateral ankle conditions. If addendum opinions cannot be obtained, then new examinations must be conducted. The examiner must be informed that the August 2021 opinions were deficient because they failed to consider the National Guard physical examinations in June 1981, October 1986, March 1991, January 1995, and February 2000, which are contained in the claims file, and also failed to consider that the Veteran's self-report to the August 2021 examiner of a history of right knee injury in service was contradicted by his self-reported at a September 2016 treatment of no history of trauma to the right knee. The examiner must be informed that the August 2021 examiner also failed to consider the Veteran's prior contentions of disability in each knee and each ankle, as well as findings upon November 2018 VA examination of bilateral calcaneal spurs. The examiner should be advised that the credibility of the Veteran's self-reported histories to the August 2021 examiner of injury to the right ankle and right knee in reserves training is of questionable credibility due to contradiction of his self-reported history of knee injury by his past statement as well as by contrary historical evidence. The examiner must document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. Separately for any disability of each knee and any disability of each ankle, the examiner must provide a medical opinion addressing whether it is at least as likely as not (50 percent or greater probability) that the disability developed in service or was otherwise causally related to service. For any arthritis, the examiner(s) should also opine whether it is at least as likely as not (50 percent or greater probability) that the disability was present to a disabling degree within a year of the Veteran's service separation in March 1962. Separate opinions must be provided for each disability. The examiner must provide an explanation (rationale) for each opinion supported by evidence and medical knowledge. Each of these explanations must include consideration of the Veteran's work as a combat engineer in service, and must address the June 2015 private medical opinion of Dr. M.Q. 4. Obtain an addendum by a mental health practitioner qualified to address claimed psychiatric disability. If an addendum cannot be obtained, then a new examination must be conducted. The examiner must be informed that an August 2021 VA examination opinion was deficient because the rationale supporting the opinion failed to address the submitted June 2015 private opinion of Dr. M.Q., which the Board had required in its May 2021 remand. The examiner must review the record. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. For any psychiatric disability present during the claim period, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the disability developed in service or is otherwise causally related to service. For any psychosis identified, the examiner must also opine whether it is at least as likely as not (50 percent or greater probability) that the disability was present to a disabling degree within a year of the Veteran's service separation in March 1962. (Continued on the next page) Separate opinions must be provided for each disability. The examiner must provide an explanation (rationale) for each opinion supported by evidence and medical knowledge. Each of these explanations must include consideration of the Veteran's work as a combat engineer in service, and must address the June 2015 private medical opinion of Dr. M.Q. 5. Thereafter, readjudicate the appealed claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.