Citation Nr: 21068998 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-13 789 DATE: November 17, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a bilateral foot disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for an acquired psychiatric disorder (initially claimed as anxiety and/or depression) is remanded. Entitlement to service connection for a left eye disorder is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. REASONS FOR REMAND The appellant has service in the United States Army National Guard (ARNGUS) and the Army Reserves from July 1978 to January 2012, during which time the period from November 20, 1978 to February 23, 1979 is considered active duty for training (ACDUTRA). The claims on appeal come before the Board of Veterans' Appeals (Board) on appeal of a January 9, 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). On February 22, 2019, the appellant's claims were remanded by the Board in order to obtain certain treatment records during ARNGUS service. Despite the association of these records with the appellant's claims file, the claims still remained denied, and the appellant was most recently issued a Supplemental Statement of the Case (SSOC) on September 10, 2021. The Board accordingly reasserts jurisdiction. In sum and substance, the appellant asserts that despite the evidence currently of record, the appellant has not been afforded VA examinations for all of the claims for service connection on appeal. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); NOD ( Feb. 8, 2017 ), at Question No. 12A. The Board also interprets the failure to provide certain examinations after obtaining National Guard records as a failure to adequately develop his claims in substantial compliance with the previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As a result, the Board concludes that it is precluded from adjudicating any of the claims on appeal; therefore, the claims must all be remanded. This appeal was previously advanced on the Board's docket on account of a meteorological adverse event in his county of residence. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). See BVA Letter ( Sept. 5, 2018 ). 1. Entitlement to service connection for bilateral hearing loss is remanded. The appellant was previously afforded a VA examination to determine the etiology of his current bilateral hearing loss in December 2016. That examination only considered audiograms up to March 2000; however, the National Guard records include audiograms after March 2000 that have not yet been considered in developing the appellant's claim for service connection. An addendum opinion is warranted at a minimum, if not an updated VA examination. As the Board is precluded from issuing a determination herein, this claim is remanded. 2. Entitlement to service connection for a bilateral foot disorder is remanded. By way of background, the evidence of record establishes that the appellant has one right foot injury incurred in July 2004 that was deemed in the line of duty as per determination one year later, see Reserve STR (July 9, 2004; July 14, 2005) (rec'd Apr. 29, 2020), an apparent injury to the left foot also on July 9, 2004, but without a similar line of duty determination, see id., and a separate injury to the left heel that has been determined as not within the line of duty, see Reserve STR (Mar. 25, 2010) (rec'd Apr. 29, 2020). The appellant's claims file was given to an examiner on July 15, 2021, see VA Exam (Opinion) ( July 15, 2021 ). The examiner diagnosed degenerative joint disease of the bilateral feet, see VA Exam ( July 15, 2021 ), at Section I, Question No. 1A, and also pain in both feet, see id. at Sections XIII and XIV. The Board also concludes that to the extent this examiner appears to have relied on an absence of medical evidence in yielding a negative conclusion, medical opinions that rely solely on absence of evidence from the record are inadequate. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, the Board concludes that the July 2021 examiner's opinion is not fully supported by a well-reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weigh against contrary opinion."). Accordingly, an addendum opinion is required. 3. Entitlement to service connection for a left shoulder disorder is remanded. 4. Entitlement to service connection for hypertension is remanded. 5. Entitlement to service connection for an acquired psychiatric disorder (initially claimed as anxiety and/or depression) is remanded. 6. Entitlement to service connection for a left eye disorder is remanded. 7. Entitlement to service connection for a bilateral knee disorder is remanded. 8. Entitlement to service connection for a cervical spine disorder is remanded. A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The service treatment records associated with the claims file after remand include a temporary profile for elevated blood pressure assigned on September 7, 2008, a permanent profile for thoracic outlet syndrome manifesting in some upper body impairment assigned on November 22, 2008, and varicose veins of the bilateral lower extremities diagnosed on May 6, 2012. See Reserve STR (rec'd Apr. 29, 2020). Meanwhile, other evidence of record indicates a back laceration on July 13, 1988, see STR (rec'd July 1, 2016). Despite all of the above evidence, there is no VA examination on file for those disorders. The Board remands the claims for hypertension and the left shoulder accordingly. In addition, the appellant submitted a wide-ranging medical opinion from a physician that encourages the Board to find that all of his claims on appeal "are more probable than not secondary to his military service performance," on the basis of only medical records reviewed during ACDUTRA. See Medical Treatment Record ( Feb. 13, 2017 ). However, this opinion is not fully supported by a well-reasoned medical explanation. See Nieves-Rodriguez v. Peake, supra. On remand, VA etiology opinions should be obtained. McLendon v. Nicholson, supra. As the psychiatric claim is remanded, the Board expands the claim to include all potentially applicable diagnoses, not just anxiety and/or depression as may have been previously claimed. Clemons v. Shinseki, 23 Vet. App 1 (2009). The matters are REMANDED for the following action: 1. The appellant should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the appellant, all outstanding records, to include any VA treatment records, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the appellant and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. No VA medical records appear to be associated with the claims file as of this writing. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, the AOJ should schedule VA examinations of the appellant to confirm specific diagnoses and to determine the etiology of the appellant's claimed bilateral hearing loss, bilateral foot disorder, left shoulder disorder, hypertension, acquired psychiatric disorder, left eye disorder, bilateral knee disorder, and cervical spine disorder. A complete copy of the claims file, to include this remand, the Veteran's complete service treatment records, and the Veteran's complete medical treatment records, must be made available to the examiner. The need for a physical examination is left to the discretion of the examiner. The examiner is asked to respond to the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the appellant's current bilateral hearing loss had onset in service, or is otherwise related to ACDUTRA or reserve duty in the line of duty? The examiner must consider all audiological evidence of record, including all audiological examinations conducted through January 2012. (b.) For all diagnoses of bilateral foot disorders, if the appellant does not have degenerative joint disease or "pain" as may be a disability under Saunders v. Wilkie, then these findings should be reconciled. Is it at least as likely as not (50 percent or greater probability) that each applicable diagnosed disorder has onset in service, or is otherwise related to ACDUTRA or reserve duty in the line of duty? The examiner should address the relevance or lack thereof of the following evidence: i. A right foot injury incurred in July 2004, which is determined to have been incurred in the line of duty. ii. A left foot injury notated contemporaneously also on July 2004, but for which no line duty determination is apparent. iii. A left heel injury in March 2010 that is not entitled to service connection as it is deemed not within the line of duty. (c.) If a left shoulder disorder is diagnosed, is it at least as likely as not (50 percent or greater probability) that the appellant's current disorder had onset in service, or is otherwise related to ACDUTRA or reserve duty in the line of duty? The examiner should address the relevance or lack thereof of thoracic outlet syndrome for which a permanent profile was assigned for the upper body on November 22, 2008. (d.) If hypertension is diagnosed, is it at least as likely as not (50 percent or greater probability) that the appellant's current disorder had onset in service, or is otherwise related to ACDUTRA or reserve duty in the line of duty? The examiner should address the relevance or lack thereof of elevated blood pressure for which a temporary profile was assigned for the upper body on September 7, 2008. (e.) If an acquired psychiatric disorder is diagnosed, is it at least as likely as not (50 percent or greater probability) that the appellant's current disorder had onset in service, or is otherwise related to ACDUTRA or reserve duty in the line of duty? (f.) For any left eye disorder diagnosed, is it at least as likely as not (50 percent or greater probability) that it has onset in service, or is otherwise related to ACDUTRA or reserve duty in the line of duty? The examiner should address the relevance or lack thereof of some evidence of the appellant's bilateral visual acuity worsening from 20/20 to 20/25 during ARNGUS and reservist service. (g.) If a bilateral knee disorder is diagnosed, is it at least as likely as not (50 percent or greater probability) that the appellant's current disorder had onset in service, or is otherwise related to ACDUTRA or reserve duty in the line of duty? (h.) If a cervical spine disorder is diagnosed, is it at least as likely as not (50 percent or greater probability) that the appellant's current disorder had onset in service, or is otherwise related to ACDUTRA or reserve duty in the line of duty? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.