Citation Nr: 21075682 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-31 664 DATE: December 21, 2021 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a low back disability, to include degenerative joint disease (DJD) is remanded. Entitlement to service connection for a neck disability, to include degenerative joint disease (DJD) is remanded. REASONS FOR REMAND The Veteran had active service from January 1976 to September 1976. This appeal was remanded by the Board most recently in July 2021. 1. Entitlement to service connection for right shoulder disability. 2. Entitlement to service connection for left leg disability. 3. Entitlement to service connection for right leg disability. In its July 2021 Remand instructions, the Board directed the Agency of Original Jurisdiction to obtain an opinion as to whether it is at least as likely as not that any shoulder or leg disability "(1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service." The Agency of Original Jurisdiction obtained opinions in August 2021 which addressed whether the Veteran's shoulder or leg disabilities were incurred in or caused by the claimed in-service injury, event, or illness. However, the opinions did not specifically address the issues above as directed in the prior Remand order. Notably, the examinations did not address whether the Veteran's right shoulder and bilateral leg disabilities could have developed consistently with his lay statements. The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). As such a remand is necessary. 4. Entitlement to service connection for an acquired psychiatric disorder. In In its July 2021 Remand instructions, the Board directed that the Agency of Original Jurisdiction was to obtain an obtain an opinion as to whether it was at least as likely as not that the Veteran's acquired psychiatric disorder was related to service including "alleged maltreatment by the Veteran's First Sergeant". The Board specifically directed that the examiner must consider the Veteran's lay statements and the opinion should "if at all possible, neither should be based solely on the absence or presence of contemporaneous medical records." The August 2021 VA examination report states that there "are no other notes in the military record related to symptoms nor to incidents of maltreatment." The opinion does not specifically address the Veteran's alleged maltreatment by his First Sergeant, as described in his lay statements, and relies on an absence of "incidents of maltreatment" in the record as rationale. As such, the opinion is not in substantial compliance with the prior remand instructions, and a remand is necessary. 5. Entitlement to service connection for a low back disability, to include degenerative joint disease (DJD). 6. Entitlement to service connection for a neck disability, to include degenerative joint disease (DJD). The July 2021 Board decision reopened the Veteran's claims for service connection for a neck and back disability and remanded these issues for consideration on the merits by the Agency of Original Jurisdiction in the first instance. The Agency of Original Jurisdiction did not adjudicate these claims prior to returning the claims to the Board. As such a remand is necessary for the Agency of Original Jurisdiction to adjudicate these claims. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed right shoulder disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Identify any right shoulder disability by either (1) diagnosis or (2) functional impairment. (b.) For each right shoulder disability, is it at least as likely as not related to service, including any in-service ankle symptoms or the Veteran being ordered to stand on his feet and hold his weapon up at shoulder height for long periods of time, as described in his June 2016 Statement in Support of Claim? (c.) Is it at least as likely as not that any right shoulder disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner must consider the Veteran's lay statements regarding in-service occurrence of the injury/illness and should discuss those statements as relevant and necessary. The examiner's opinion and the rationale therefore should be based on all relevant evidence of record, and, if at all possible, neither should be based solely on the absence or presence of contemporaneous medical records. 2. Schedule the Veteran for a VA examination for his claimed leg disabilities. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Identify any leg disability by either (1) diagnosis or (2) functional impairment. (b.) For each leg disability, is it at least as likely as not related to service, including any in-service ankle symptoms or the Veteran being ordered to stand on his feet and hold his weapon up at shoulder height for long periods of time, as described in his June 2016 Statement in Support of Claim? (c.) Is it at least as likely as not that any leg disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner must consider the Veteran's lay statements regarding in-service occurrence of the injury/illness and should discuss those statements as relevant and necessary. The examiner's opinion and the rationale therefore should be based on all relevant evidence of record, and, if at all possible, neither should be based solely on the absence or presence of contemporaneous medical records. 3. Obtain an addendum opinion from a medical doctor regarding whether the Veteran's acquired psychiatric disorder is at least as likely as not related to any in-service injury or disease, including (1) alleged maltreatment by the Veteran's First Sergeant, (2) any in-service complaints of anxiety and a nervous stomach, and (3) his poor performance while on active duty, as reported by his superiors. The examiner must consider the Veteran's lay statements regarding in-service occurrence of the injury/illness and should discuss those statements as relevant and necessary. The examiner's opinion and the rationale therefore should be based on all relevant evidence of record, and, if at all possible, neither should be based solely on the absence or presence of contemporaneous medical records 4. Adjudicate the issues of entitlement to service connection for a low back disability, to include DJD, and entitlement to service connection for a neck disability, to include DJD (which were collectively claimed as entitlement to service connection for DJD). ZAHEER MASKATIA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, Associate Counsel