Citation Nr: 21074903 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 20-15 999 DATE: December 16, 2021 REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a thoracolumbar spine disability is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy, including on active duty from May 1967 to October 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2017 rating decision by the Veterans Benefits Administration (VBA). The Board denied the Veteran's claims in a May 2020 decision, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). In February 2021, the CAVC granted a Joint Motion for Remand (JMR), vacated the Board's decision, and remanded these matters for action consistent with the terms of the JMR. The JMR found that the rationale listed in the January 2020 statement of the case for denying some of the claims including for the thoracolumbar spine was duplicative and pertained to the wrong claim. It found the Board failed to adequately discuss (1) a copy of the VA Training Letter 07-04 and (2) the competency and credibility of the Veteran's lay statements regarding continuous back pain since the 1970s. The JMR notes the training letter identified arthritis as a condition that may be related to diving and that an advisory opinion from the Director of Compensation Service was needed as the Veteran's claim is based in part on his diving activities. In June 2021, the Board remanded these matters to VBA to obtain the advisory opinion from the Director of Compensation Service as well as additional VA examinations. The remand order directs the examiner to address the training letter and the Veteran's contentions, and it cites specific pieces of additional relevant evidence for the examiner to consider. It also directs the examiner to opine on the probability that the Veteran's arthritis manifested to a compensable degree within one year of the Veteran's separation from active duty. 38 C.F.R. §§ 3.307, 3.309(a). Unfortunately, while VBA obtained the Director's advisory opinion in October 2021 as well as additional opinions from a VA examiner in September 2021, the VA examiner provided very brief responses that do not adequately address the pertinent evidence including the training letter. Additionally, the opinions do not address the possibility that arthritis manifested to a compensable degree within one year of the Veteran's separation from active duty. The examiner indicated that the Veteran's diving activities were not a "primary" cause of his arthritis without discussing the extent to which they may have contributed to the arthritis. Therefore, the Board must remand these matters to VBA again to ensure that there is substantial compliance with the remand directives. The Board REMANDS these matters for the following actions: 1. VBA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. VBA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating all identified outstanding relevant records with the Veteran's claims file, VBA should request an opinion from an appropriately qualified VA clinician, preferably a physician (M.D.), as to the etiology of the Veteran's disabilities including degenerative arthritis of the left shoulder, thoracolumbar spine, bilateral hips, and bilateral knees. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner. *The need for another examination(s) is left to the discretion of the medical professional offering the opinion. Should an examination(s) be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a complete review of the claims file, the examiner is asked to provide an opinion with complete rationale addressing the following: (a) For EACH current disability including degenerative arthritis of the left shoulder, thoracolumbar spine, bilateral hips, and bilateral knees, please indicate whether it is at least as likely as not (at least an approximate balance of negative and positive evidence) that it had its clinical onset in service or is otherwise etiologically related to active service, including to the Veteran's work as a saturation diver while on active duty. The examiner should discuss the extent to which the Veteran's diving activities contributed to his disabilities even if they were not the primary cause. (b) Please indicate whether the Veteran's arthritis at least as likely as not (at least an approximate balance of negative and positive evidence) manifested within one year after the Veteran's separation from service to a compensable degree (e.g. any limitation of motion, to include as due to the Veteran's reports of pain). See 38 C.F.R. §§ 3.307, 3.309(a). (c) For each medical opinion, the examiner SHALL ADDRESS: (i) The significance of the Veteran's military occupational specialty (MOS) in the Navy as a deep sea diver; (ii) The July 2007 VA Training Letter (07-04) noting an increased risk of the development of arthritis with repeated diving (see VBMS entry with document type "Correspondence," receipt date 12/14/2016); and (iii) Whether the Veteran's degenerative arthritis disabilities were incurred in or caused by the exposure to diving pressures (potential long-term effects of diving) during service (described in the Veteran's military personnel records) REGARDLESS of whether the service treatment records reflect a clinical diagnosis of decompression sickness. (d) Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant evidence in formulating the opinions: (i) the Veteran's lay statements included with his March 2020 VA Form 9 that his arthritis developed in the late 1990s and early 2000s; and (ii) the 2013-2017 private treatment records reflecting evaluation, diagnosis and/or treatment of left shoulder, back, hips, and knee disorders (see VBMS entry with document type "Medical Treatment Record -Non-Government Facility," receipt date 04/11/2017). * The Board's reference to evidence in this context should not be construed as a determination of its credibility. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.