Citation Nr: 21069128 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-34 851 DATE: November 17, 2021 REMANDED Service connection for a right shoulder disability is remanded. Service connection for a right ankle disability is remanded. Service connection for a left ankle disability is remanded. Service connection for a right knee disability is remanded. Service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1992 to October 1996. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO). The Board previously remanded these claims in January 2019, September 2019, June 2020, and May 2021 for additional development. While the Veteran originally appealed multiple other claims, the claims addressed herein are the only remaining claims pending on appeal. As will be discussed in more detail below, remand is again necessary to ensure substantial compliance with the May 2021 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duty to Assist Regarding All Claims Upon review, the Veteran's treatment records reference a motor vehicle accident in 2013 resulting in a five day hospital stay. See October 2013 VA treatment records. While VA treatment records have been obtained from this period referencing the accident, records from the hospital stay are not part of the Veteran's claims file. It appears attempts to obtain these private treatment records have not been made. As the claims addressed herein include diagnoses of arthritis, potentially intercurrent causes of arthritis are relevant to resolving the claims. As such, attempts to obtain these records should be made prior to obtaining the additionally directed VA examinations. 1. Service connection for a right shoulder disability is remanded. The Veteran contends he has a right shoulder disability that was caused by or incurred during service and has continued since separation. The Board finds remand is again necessary as the evidence of record remains insufficient to resolve his claim. In accordance with the Board's May 2021 remand directives, the Veteran was afforded another VA examination in July 2021. The examiner opined that the Veteran's right shoulder disability was less likely than not incurred in or caused by service. The examiner provided a reasoning in support thereof, however, the examiner failed to address or reconcile the Veteran's lay statements of onset, persistence of symptoms, and contended in-service event. Indeed, the Board specifically directed the examiner to address and consider the Veteran's statements that his shoulder disability began in 1994 or 1996 and was a result of strenuous physical training exercises and activities. The examiner noted consideration had been given to the Veteran's statements in 2012 and 2020. Despite these statements, however, the examiner still reasoned that there was no evidence of shoulder pain from separation until the Veteran's 2012 VA examination. The examiner also relied upon a lack of evidence within the Veteran's service treatment records (STRs) despite being directed that the examiner should consider and discuss any lay statements of record including onset and persistence of symptoms and that said statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. As such, remand is necessary to ensure substantial compliance with the May 2021 remand directives and that consideration is given to the Veteran's lay statements. See Stegall, 11 Vet. App. at 271; see also Miller v. Wilkie, 32 Vet. App. 249 (2020). The Board also notes while the July 2021 VA examiner opined that an intercurrent injury / disease cannot be ruled out as etiology of the Veteran's right shoulder disability, the examiner has not been afforded the opportunity to review the 2013 treatment records surrounding the motor vehicle accident should they be obtained in relation to potentially intercurrent causes. Additionally, as part of the limited military personnel records available, there is documentation that the Veteran received his parachutist badge and completed airborne training which remains unaddressed by a VA examiner. As such, this claim is remanded for another VA examination. 2. Service connection for a right ankle disability is remanded. 3. Service connection for a left ankle disability is remanded. The Veteran contends he has right and left ankle disabilities that were caused by or incurred during service and have continued since separation. The Board finds remand is again necessary as the evidence of record remains insufficient to resolve his claims. In accordance with the Board's May 2021 remand directives, the Veteran was afforded another VA examination in July 2021. The examiner opined that the Veteran's right and left ankle disabilities were less likely than not incurred in or caused by service. The examiner provided a reasoning in support thereof, however, the examiner failed to address or reconcile the Veteran's lay statements of onset, persistence of symptoms, and contended in-service event. The examiner opined that the Veteran's statements were directly contradicted by the documented medical evidence, however, the Veteran's STRs are unavailable. The examiner relied upon a lack of STRs to support the opinions rendered despite being directed that the examiner should consider and discuss any lay statements of record including onset and persistence of symptoms and that said statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. The examiner failed to reconcile the Veteran's lay statements of experiencing symptoms since service. Further, the examiner reasoned that there was "no evidence of a chronic sprain from separation until his examination in 2012" but the diagnosis of record at the time of the examination was degenerative joint disease. Finally, the examiner failed to address whether the Veteran's documented receipt of a parachutist badge and completion of airborne training could be related to his current diagnosis of bilateral ankle degenerative joint disease or whether the other contended in-service events were related to his current diagnosis including injuring ankles in Somalia and completing strenuous physical training exercises. Additionally, as noted above, while the July 2021 VA examiner opined that an intercurrent injury / disease cannot be ruled out as etiology of the Veteran's right and left ankle disabilities, the examiner has not been afforded the opportunity to review the 2013 treatment records surrounding the motor vehicle accident should they be obtained in relation to potentially intercurrent causes. As such, remand is again necessary to ensure substantial compliance with the Board's May 2021 remand directives and that the Veteran is afforded an adequate VA examination. See Stegall, 11 Vet. App. at 271. 4. Service connection for a right knee disability is remanded. 5. Service connection for a left knee disability is remanded. The Veteran contends he has right and left knee disabilities that were caused by or incurred during service and have continued since separation. The Board finds remand is again necessary as the evidence of record is insufficient to resolve his claims. In accordance with the Board's May 2021 remand directives, the Veteran was afforded another VA examination in July 2021. The examiner opined that the Veteran's right and left knee disabilities were less likely than not incurred in or caused by service. The examiner provided a reasoning in support thereof, however, the examiner failed to address or reconcile the Veteran's lay statements of onset, persistence of symptoms, and contended in-service event. The examiner opined that the Veteran's statements were directly contradicted by the documented medical evidence, however, the Veteran's STRs are unavailable. The examiner relied upon a lack of STRs to support the opinions rendered despite being directed that the examiner should consider and discuss any lay statements of record including onset and persistence of symptoms and that said statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. Further, the examiner reasoned that there was no evidence of knee pain from separation until the 2012 VA examination without reconciling the Veteran's competent statements of pain since service. Regarding only the right knee, the examiner reasoned there was no evidence of trauma to the knee during active duty that would result in degenerative joint disease but failed to address or consider the Veteran's documented receipt of a parachutist badge and completion of airborne training as well as the Veteran's statements regarding strenuous physical training exercises. Regarding the left knee specifically, as part of the examiner's rationale, he noted that the Veteran's imaging was normal despite multiple previously noted diagnoses of left knee degenerative joint disease. Additionally, as with the right knee, the examiner failed to address or consider the Veteran's documented receipt of a parachutist badge and completion of airborne training as well as the Veteran's statements regarding strenuous physical training exercises as contended in-service injuries / events. As noted above, while the July 2021 VA examiner opined that an intercurrent injury / disease cannot be ruled out as etiology of the Veteran's right and left knee disabilities, the examiner has not been afforded the opportunity to review the 2013 treatment records surrounding the motor vehicle accident should they be obtained in relation to potentially intercurrent causes. As such, remand is again necessary to ensure substantial compliance with the Board's May 2021 remand directives and that the Veteran is afforded an adequate VA examination. See Stegall, 11 Vet. App. at 271; see also Miller v. Wilkie, 32 Vet. App. 249 (2020). The matters are REMANDED for the following action: 1. Contact the Veteran and / or his representative and ask him to identify the provider and / or facility that furnished care surrounding the 2013 motor vehicle accident and corresponding hospital admission and complete an authorization for VA to obtain treatment records from the identified provider / facility. After obtaining any necessary authorization, attempt to obtain and associate with the claims file any treatment records regarding the Veteran's 2013 motor vehicle accident and related hospital stay. 2. After completing the above development, schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of his right shoulder, right and left ankle, and right and left knee disabilities. The entire claims file and this remand should be made available to the examiner for review. The examiner should render an opinion, including rationale, addressing the following: - For any arthritis disability of the right shoulder, right ankle, left ankle, right knee, and left knee, is it at least as likely as not that the arthritis (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In so opining, the examiner is directed to address and consider the noted diagnoses of arthritis in the right shoulder, right and left ankles, and right and left knees. Special attention is directed to the Veteran's lay statements of symptom onset and persistence of symptoms since service. The examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. The examiner is advised that competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence as VA made a formal finding on the unavailability of service treatment records for the Veteran from September 24, 1992 to October 28, 1996. In other words, the examiner should not rely solely upon a lack of service treatment records in rendering an opinion. The examiner is also directed to address and consider any potentially intercurrent causes including the 2013 motor vehicle accident with a corresponding five day hospital admission. - Is each disability (to include, but not limited to arthritis) of the right shoulder, right ankle, left ankle, right knee, and left knee at least as likely as not related to service, including strenuous physical exercises / activities, injuries in Somalia, and airborne training with a parachutist badge? In so opining, the examiner is specifically directed to address and reconcile the Veteran's lay statements of onset in-service and the contended in-service events / injuries including the Veteran's documented airborne training with a parachutist badge; reports of strenuous physical exercises / activities; and an injury in Somalia. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner 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. 3. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.