Citation Nr: 21069912 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-52 479 DATE: November 22, 2021 REMANDED Entitlement to service connection for bilateral hand disability (to include cold weather injury residuals) is remanded. Entitlement to service connection for bilateral foot disability (to include cold weather injury residuals) is remanded. Entitlement to service connection for bilateral shin splints is remanded. Entitlement to service connection for bilateral ankle disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a cervical spine disability, to include a pinched nerve and as secondary to a right shoulder disability, is remanded. REASONS FOR REMAND The Veteran had active military service from November 1961 to October 1964 and from December 1990 to June 1991. In July 2020, the Board denied these claims, and, in response, the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In a July 2021 Order, the Court vacated the Board's decision denying these claims and remanded them back to the Board for readjudication pursuant to agreement in a Joint Motion for Remand (JMR). The Board, in turn, is remanding these claims back to the local regional office (RO), i.e., Agency of Original Jurisdiction (AOJ) for further development and consideration. Initially, the Board notes that, in a prior 2018 remand, it stated that an examiner should consider the Veteran as credible, but the Board did not specify what statements the Veteran was considered credible concerning. While he may be credible that he had cold hands and feet in service, he is not competent to state the clinical degree of any injury. He may also be found credible as to having had shin splints in service (which is supported by buddy statements). As regarding his right shoulder, he is credible as to pain in 1991 (which is supported by his service treatment records (STRs)). However, he is not credible as to any statement of continuity of symptoms of any of his claimed disabilities from his first period of active-duty service. He has asserted on numerous occasions that he was in good health and did not have complaints following that service (see Reports of Medical History and Annual Certificate of Physical Condition for Reserve purposes). He also has stated on more than one occasion that he did not have any joint pain until after he got an anthrax shot in 1991, and that his pain is a residual of that shot. Any assertion as to continuity of symptoms since his first period of service that ended in 1964 would be in conflict with his many prior statements to include his statement when first filing claims conceding that he had no joint pain prior to 1992 and that all pain manifested after he returned from Desert Storm; logically, it would be impossible for him to be credible as to both assertions (i.e., joint pain beginning after 1991 and yet joint pain since 1964). In sum, he may be found credible as to cold hands and feet, shin splints in his first period of service, right shoulder tendonitis during his second period of service, and current pain. 1. Entitlement to service connection for bilateral hand cold weather injury is remanded AND 2. Entitlement to service connection for bilateral foot cold weather injury is remanded. A June 2019 VA examiner's negative nexus opinion was based on a lack of notation or treatment in service. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of a claimed disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records. In other words, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). Thus, a supplemental opinion with additional rationale is warranted. The Veteran's Reports of Medical Examination in October 1964 (release from active duty), and March 1981, June 1982, March 1983, March 1984, February 1985, March 1986, February 1987, January 1988, February 1989, September 1991, February 1993, April 1995, March 1997, and March 1999 reflect normal feet, upper extremities, and lower extremities upon clinical evaluation. Moreover, his corresponding Reports of Medical History reflect that he specifically denied lameness, bone deformity, joint deformity, arthritis, rheumatism, bursitis, foot trouble, and neuritis and that he was in good physical condition. A June 2002 VA clinical record reflects that the Veteran reported that he worked as a mechanic and has been having joint pain and stiffness in the fingers, hands, and arms bilaterally over the past 10 years since returning from the Persian Gulf. Upon examination, his hands had Osler's nodes, and joint enlargement. An August 2006 VA examination report reflects that the Veteran reported that he had an anthrax shot in January 1991, and initially did not have any problems for an entire year. He contends that after his release from active duty, he worked as a mechanic, and that at that time, generalized aches and pains developed. The Veteran has asserted that he never experienced any joint problems until after he received the anthrax shot in 1991 and came back from Desert Storm (see June 2005 VA Form 21-526 application for benefits, December 2005 VA Form 21-4138, January 2013 VA Form 21-526, and February 2014 Notice of Disagreement). In a July 2014 VA Form 21-526EZ, he alleged that he had cold weather injuries to his heads and feet. At a June 2019 examination, the Veteran asserted that the Veteran has asserted that he had frostbite in 1962 but did not seek treatment at that time. At the time of the 2019 examination, he stated that he has some tingling and numbness in the hands and feet. It was noted that he was diagnosed with diabetes peripheral neuropathy. The examiner opined that the Veteran's claimed condition was less likely as not due to service and noted that there is "no adequate evidence diagnosis/clear clinical symptoms description for condition in the STR available record reviewed." In providing a supplemental/addendum opinion, the examiner should consider, that assuming that the Veteran had cold weather injuries of some kind in 1962, would he as likely as not have current residuals given the above noted evidence, his post-service occupation, the current diagnosis of diabetes with peripheral neuropathy, and how significant cold weather injuries would have manifested. 3. Entitlement to service connection for bilateral shin splints is remanded. The Veteran contends that his current bilateral shin splint disability began during his first period of active service as a result of required training and exercise. In an October 2016 statement, C.N. asserted that he and the Veteran were in boot camp together from November 1961 through January 1962. C.N. indicated that he and the Veteran participated in physical readiness tests that involved running in formation in full gear. C.N. reported that during one of the tests, the Veteran slipped and fell on the muddy ground, which resulted in stress fractures of his shins. In a June 2019 statement, S.P. (the Veteran's cousin) stated that when the Veteran did not come back from boot camp with a friend, the friend informed him that the Veteran had had a stress fracture in January 1962 which caused him to be held back from returning to his family. A June 2019 VA examiner diagnosed the Veteran with bilateral shin splints. The examiner opined that the Veteran's shin splints were less likely than not related to his service. His rationale was that there is no history of shin splints in the STRs. Upon remand, a more adequate rationale should be provided. 4. Entitlement to service connection for bilateral ankle disability is remanded. AND 5. Entitlement to service connection for a right knee disability is remanded. As noted above, the Veteran has stated that he did not have joint problems from his first period of service or during his second period of service. There are also no clinical record noting continuity of symptoms since service. A June 2019 DBQ notes a diagnosis of bilateral ankle strain, and an opinion that it is less likely as not due to service based on a lack of STRs. With regard to the knees, an August 2006 VA clinical record reflects a report of chronic right knee pain; upon x-ray, he had mild lateral compartment joint space narrowing, a nonspecific arthritic change. A July 2018 private record (Mercy Clinic Sunset Hills) reflects a radiographic impression of "mild" arthritis and the clinician's assessment that his "arthritis actually looks quite mild". An August 2019 VA DBQ reflects the Veteran's contention that he has periodic right knee pain. The examiner found it less likely as not that the Veteran's degenerative joint disease (DJD) of the right knee manifested in service or was a result of active service. The rationale was a lack of STRs noting complaints, and that his disability is more likely related to the aging process and weight bearing stresses on the knee over the Veteran's lifetime. In providing addenda to the 2019 opinions, the examiner should discuss why the ankle disabilities are less likely as not due to service, and why his knee disability is more likely related to aging and weight-bearing stresses (e.g., it was of the severity common for someone of the Veteran's age, it was of severity common for someone with his post-service employment, it was of severity common for someone of his weight, it was not of the severity expected if it had originated in service.) 6. Entitlement to service connection for a right shoulder disability is remanded. A February 2, 1991 STR reflects that the Veteran complained of right shoulder pain. He was diagnosed with AC tendonitis. Three days later, a February 5, 1991 STR reflects that the Veteran reported feeling better but needed a refill of medication. Range of motion was better, but he was still tender over the AC joint. A February 23, 1991 STR reflects that he did well with aspirin, but still had some symptoms. Subsequent Reports of Medical History and Reports of Medical Examinations are unremarkable for further complaints and note normal upper extremities upon evaluation. Post service, September and October 2002 VA records note minimal degenerative spurring bilaterally in the shoulders. 2013 records note mild AC joint arthritis. The August 2019 VA opinion noted that his current disability was most likely due to aging and stresses on the shoulder associated with activities of daily living. The JMR found that this was inadequate because it did not include a reasoned medical explanation connecting the two. Essentially, the examiner should have discussed why the shoulder was most likely related to aging and stresses (e.g., it was of the severity common for someone of the Veteran's age, it was of severity common for someone with his post-service employment, it would have been noted earlier if long-standing, tendonitis does not lead to arthritis, etc.) 7. Entitlement to service connection for a cervical disability, to include as secondary to a right shoulder disability, is remanded. As noted above, the Veteran has asserted that he never experienced any joint problems until after he received the anthrax shot in 1991 and came back from Desert Storm. However, his Reports of Medical Examination and Reports of Medical History in 1991, 1993, 1995, 1997, and 1999 are unremarkable for complaints or diagnosis. (He separated from his second period of active service in 1991, but had subsequent evaluations for Reserve purpose.) A June 2002 VA clinical record reflects that the Veteran presented for an initial visit. It was noted that he had a history of cranial nerve neuropathy secondary to a motor vehicle accident in 1977, at which time he had been hospitalized for a month. He denied any neck pain. Upon examination, he had a full range of motion of the neck without pain. A July 2002 note reflects a possible left neck scar which was consistent with his previously trauma surgery at level II-III. He was noted to have a left neck mass, an August 2002 record reflects that a CT scan revealed surgical changes at the site of the neck abnormality; the Veteran noted that he had had a motor vehicle accident in 1977 but was unaware as to what kind of surgery he had. An October 2002 VA record notes that he had degenerative joint disease of the lower cervical spine. In 2013, the Veteran had an anterior cervical discectomy and instrumented fusion (see Premier Care records). The June 2019 VA examiner opined that the Veteran's cervical arthritis was less likely than not related to service and was more likely due to the aging process and the stress of daily activities of living. Again, the JMR found that this opinion lacked sufficient rationale; therefore, a supplement opinion is warranted. (The examiner also found no current diagnosis of a pinched nerve). In addition, the Board finds that the Veteran should be given another opportunity to submit private records. Accordingly, these claims are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all private treatment records from Premier Care prior to January 2013 for his cervical spine. If he provides this necessary authorization, obtain these additional records. Document all requests for these records, as well as all responses, in the claims file and appropriately notify him and his representative if unable to obtain these additional records. 2. Thereafter, obtain supplemental opinions to the 2019 DBQs. The examiner is asked to specifically provide more rationale to the findings that the Veteran's claimed disabilities (bilateral hand cold weather injury residuals, bilateral feet cold weather injury residuals, bilateral shin splints, bilateral ankle disability, right knee disability, right shoulder disability, and a cervical disability, to include a pinched nerve) are less likely as not causally related to service. The examiner's opinion should not be based solely on a lack of STRs, but may consider a) the Veteran had shin splints in approximately 1961 or 1962; b) he had frostbite/cold weather injuries which did not require treatment in approximately 1962; c) the Veteran's denials of complaints in his numerous Reports of Medical History and Annual Certificates; d) the normal examinations findings in numerous Report of Medical Examination; e) the right shoulder complaints in February 1991 as noted in the STRs; f) the Veteran's contention that he had no joint pain until after he returned from Desert Storm and was working as a mechanic in 1992; g) the Veteran's post-service occupation as a mechanic; h) the level of severity of the Veteran's arthritis when first noted (e.g., see August 2006 VA and 2018 private record (Mercy Clinic Sunset Hills) for the knees, and September/October 2002 and 2013 VA record for the shoulder); and i) his nonservice-connected disability of diabetes. In providing opinions, it would be helpful if the examiner addresses a) whether it is common for someone of the Veteran's age, weight, and/or occupation to have arthritis, or whether it's severity, or lack thereof, reflects it was as likely as not incurred in service; b) whether cold weather injuries which did not require treatment in service would manifest in the Veteran's symptoms decades later and/or would have been noticed on examinations; and c) why the Veteran's symptoms in the hands and feet are more likely related to diabetic peripheral neuropathy. If upon further review, the examiner changes the opinions from 2019 (i.e., finds that his disabilities are as likely as not related to service), such should be stated, and an adequate rationale provided. When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale preferably citing to evidence in the file supporting conclusions and/or citing to accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.