Citation Nr: 21074592 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 09-36 020 DATE: December 15, 2021 REMANDED Entitlement to service connection for a right elbow disability, to include bursitis, is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a foot disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1974 until October 1978. In April 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal was last before the Board in March 2021 when it was remanded for further development to include obtaining VA etiology opinions. Unfortunately, there has not been substantial compliance with the Board's prior remand directives, and another remand is now required. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a right elbow disability, to include bursitis, is remanded. The claim must be remanded again because the April 2021 negative VA opinion is inadequate. The rationale was based improperly on the examiner's observation that there was a lack of continuous care since service. Entitlement to service connection for a low back disability is remanded. The claim is remanded for a medical opinion because the May 2021 negative VA opinion is inadequate. The examiner considered the Veteran's complaints during service but the rationale for the negative opinion is based, in part, on a lack of diagnostic imaging done at the time, without explaining the significance of that fact. The opinion is further inadequate because the examiner did not address the Board's specific directives to consider the Veteran's lay assertions of back pain since service and the reasons he was unable to obtain consistent treatment for a period of time. Entitlement to service connection for a foot disability is remanded. The claim must be remanded again because the May 2021 negative VA opinion is inadequate. The examiner did not consider the Veteran's sworn testimony that he experienced foot pain and swelling in service, sought treatment both in service and out of service, and that he has experienced pain and swelling in his foot since service. Entitlement to service connection for an acquired psychiatric disorder is remanded. The claim must be remanded again because the May 2021 VA opinion is inadequate The examiner offered a negative nexus opinion, but improperly limited consideration of the event, injury, or disease to only the Veteran's verified stressor event in service and did not opine as to etiology based upon other events in service reported by the Veteran. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the nature and likely etiology of the Veteran's low back disability. All pertinent documents should be provided to the opinion provider. If the opinion provider determines a requested opinion cannot be provided without examination of the Veteran, one should be scheduled. After a review of the record and any additional examination, testing, or study deemed necessary, the clinician is asked to answer the following: (a.) Is it at least as likely as not (50 percent or greater probability) the Veteran's low back disability is related to his service? (b.) Is it at least as likely as not (50 percent or greater probability)that the Veteran's diagnosed degenerative arthritis of the spine(i) began during active service, (ii) manifested within one year after discharge from service, or (iii) was noted during service with continuity of the same symptomatology since service? In answering both questions, the opinion provider should consider, and discuss as appropriate, the following: (i) the Veteran's in-service report of back pain after swimming in December 1974, (ii) the Veteran's in-service report of low back pain after playing basketball in August 1977, (iii) the Veteran's October 1977 in-service report of pain in his back muscle with muscle spasms, (iv) a September 2002 private treatment note noting reports of low back pain after a motor vehicle accident, (v) the May 2010 and June 2010 letters from a private provider opining that the Veteran's low back pain is related to treatment while in service, (vi) an October 2011 VA treatment note wherein the Veteran reported chronic low back pain for 20 years, and (vii) the Veteran's sworn testimony that he has been treated for his back condition since service. All provided opinions must be supported by complete rationale. If the opinion provider determines a requested opinion cannot be provided without resort to speculation, they should say why. 2. Obtain an addendum opinion from an appropriate clinician regarding the nature and likely etiology of the Veteran's right elbow disability. All pertinent documents should be provided to the opinion provider. If the opinion provider determines a requested opinion cannot be provided without examination of the Veteran, one should be scheduled. After a review of the record and any additional examination, testing, or study deemed necessary, the clinician is asked to answer the following: (a.) Is the Veteran's right elbow disability, to include degenerative arthritis, at least as likely as not (50 percent or greater probability) related to service? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed degenerative arthritis of right elbow (i) began during active service, (ii) manifested within one year after discharge from service, or (iii)was noted during service with continuity of the same symptomatology since service? In answering (a) and (b) above, the opinion provider must consider, and discuss as appropriate, the following: (i) in-service injury to the right elbow with swelling while playing football in September 1976 diagnosed as bursitis, (ii) in-service inflammation of the right elbow noted in March 1977, and (iii) complaint of right arm pain following a motor vehicle crash in September 2002. All provided opinions must be supported by complete rationale. If the opinion provider determines a requested opinion cannot be provided without resort to speculation, they should say why. 3. Obtain an addendum opinion from an appropriate clinician regarding the nature and likely etiology of the any diagnosed foot disability. All pertinent documents should be provided to the opinion provider, including a copy of this remand. If the opinion provider determines a requested opinion cannot be provided without examination of the Veteran, one should be scheduled. After a review of the record and any additional examination, testing, or study deemed necessary, the clinician is asked to answer the following: (a.) Identity all diagnosed foot disorders since November 2009, to include bilateral pes planus, bilateral plantar fasciitis, and bilateral arthritic conditions. (b.) For each diagnosed foot disability, is it at least as likely as not (50 percent or greater probability) the Veteran's low back disability is related to his service? (c.) If arthritis is diagnosed, is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed arthritis of the foot(i) began during active service, (ii) manifested within one year after discharge from service, or (iii) was noted during service with continuity of the same symptomatology since service? In answering (a), (b), and (c)above, the opinion provider should consider, and discuss as appropriate, the Veteran's sworn testimony that he began experiencing foot pain and swelling in service and that it has continued since that time. All provided opinions must be supported by complete rationale. If the opinion provider determines a requested opinion cannot be provided without resort to speculation, they should say why. 4. Obtain a VA medical opinion from an appropriate clinician to determine the etiology of any diagnosed acquired psychiatric disorders. Copies of all pertinent records, including a copy of this remand, must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. Based on the review of the record and examination, if necessary, the examiner should answer the following: (a.) For any acquired psychiatric disorder diagnosed during the period of the claim, is it at least as likely as not (50 percent or greater probability) that acquired psychiatric disorder is related to the Veteran's active duty service, including but not limited to as due to his verified stressor event? All provided opinions must be supported by complete rationale. If the opinion provider determines a requested opinion cannot be provided without resort to speculation, they should say why. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.