Citation Nr: 21076779 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 13-17 838 DATE: December 27, 2021 REMANDED Entitlement to service connection for a lumbar spine disability, to include as due to exposure to environmental hazards in the Persian Gulf and an undiagnosed illness, is remanded. Entitlement to service connection for a cervical spine disability, to include as due to exposure to environmental hazards in the Persian Gulf and an undiagnosed illness, is remanded. Entitlement to service connection for a left wrist disability, to include as due to exposure to environmental hazards in the Persian Gulf and an undiagnosed illness, is remanded. Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected left shoulder rotator cuff tendonitis with Acromioclavicular (AC) joint sprain (left shoulder disability) and as due to exposure to environmental hazards in the Persian Gulf and an undiagnosed illness, is remanded. Entitlement to service connection for a right knee disability, to include as due to exposure to environmental hazards in the Persian Gulf and an undiagnosed illness, is remanded. Entitlement to service connection for a right ankle disability, to include as due to exposure to environmental hazards in the Persian Gulf and an undiagnosed illness, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1999 to February 2000 and from June 2005 to May 2006, with additional service in the Marine Corps Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The undersigned agreed to keep the record open for 90 days to allow the Veteran additional time to submit additional service personnel records (SPRs), to include any military police reports pertaining to an in-service motor vehicle accident. See May 2021 Hearing Transcript, pages 19-20. The Board notes that the 90 day period has elapsed, and no such evidence has been received. By way of background, these matters were previously before the Board in January 2016 and January 2018, when they were remanded for additional development. The Board notes that the January 2018 Board remand included the issues of entitlement to service connection for bilateral shoulder disabilities, bilateral knee disabilities, and a left ankle disability, to include as manifestations of an undiagnosed illness and exposure to Gulf War hazards. See January 2018 BVA Decision. However, during the pendency of the appeal, a March 2020 rating decision granted service connection for left shoulder rotator cuff tendonitis with AC joint strain, left ankle peroneal tendonitis, and left knee patellofemoral degenerative joint disease. See March 2020 Rating Decision Narrative. Accordingly, as the Veteran's claims for entitlement to service connection for a left shoulder disability, a left ankle disability, and a left knee disability have been granted, those issues are no longer in appellate status as there are no cases or controversies presently before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Lastly, the Board acknowledges that the January 2018 Board remand inadvertently omitted the issue of entitlement to service connection for a right ankle disability. To this end, the Veteran's claim for entitlement to service connection for a right ankle disability has not been granted, and he has not withdrawn his appeal of that issue. As such, it will be addressed herein. As noted above, the Board last remanded the issues on appeal in January 2018. Specifically, the Board, in pertinent part, asked the RO to arrange for exhaustive development to obtain any outstanding service treatment records (STRs), to include searching all facilities where such records may be stored. In this regard, the Board asked the RO to obtain records of all treatment dated while the Veteran was deployed to Iraq from September 2005 through April 2006, as well as any unassociated treatment records pertaining to his service in the Marine Corps Reserve. See January 2018 BVA Decision. After a review of the record, the Board notes that the Veteran's STRs and SPRs remain incomplete. To this end, for the reasons discussed below, the Board finds that the RO did not substantially comply with the January 2018 Board remand, and as such, that additional development is needed before the Veteran's claims can be decided. Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted above, the Veteran's SPRs are very limited and there are no STRs dated from September 2005 to April 2006 currently associated with the claims file. In this regard, a February 2020 Request for Information reflects that the RO attempted to obtain the Veteran's STRs from the 5th Battalion, 14th Marines and received a response indicating that all available STRs had been uploaded previously. See February 2020 VA Form 21-3101 Request for Information. Thereafter, in a March 2020 letter, VA found that the Veteran's STRs could not be located and were therefore unavailable for review. To this end, the letter shows that the RO made one attempt to obtain STRs from the National Personnel Records Center (NPRC) and received a response indicating that records starting in September 2005 through April 2006 were not available. The letter further indicates that all efforts to obtain the Veteran's STRs had been exhausted and that further attempts to obtain such records would be futile. See March 2020 Final Attempt Letter. The Board notes that a February 2011 Request for Medical Records response from the United States Marine Corps Headquarters indicates that the Veteran's medical records should be in the possession of the VA Records Management Facility in St. Lewis, Missouri, rather than in the possession of the NPRC. See March 2011 Third Party Correspondence. However, there is no indication that the RO contacted or otherwise attempted to obtain copies of the Veteran's service records from the VA Records Management Facility. Moreover, the Board notes that the RO only attempted to obtain service records pertaining to the 5th Battalion, 14th Marines. See, e.g., August 2019 VA Form 21-3101 Request for Information. However, the Veteran's SPRs indicate that he was assigned to the following units during service: Battery C, 1st Battalion, 14th Marines from July 2004 to April 2005; Battery C, 1st Battalion, 14th Marines, 4th Marine Division IV from April 2005 to June 2005 and from April 2006 to June 2006; 5th Battalion, 14th Marines, Area Security Company from June 2005 to September 2005; 5th Battalion, 14th Marines, Area Security Company, 1 Marine Expeditionary Force Information Group from October 2005 to April 2006. See August 2019 DPRIS Response. The Board further notes that the Veteran's DD 214 confirms that he was transferred from the 5th Battalion, 14th Marines and assigned to Battery C, 1st Battalion, 14th Marines. See June 2011 DPRIS DD 214 Certified Original Certificate of Release or Discharge from Active Duty. However, as stated above, there is no indication in the record that the RO attempted to obtain service records pertaining to the abovementioned units. Moreover, there is no indication that the RO contacted the Veteran's Marine Corps Reserve units or otherwise attempted to obtain service records pertaining thereto. Thus, as the RO limited their search for outstanding service records to records pertaining to the 5th Battalion, 14th Marines and did not request records from the VA Records Management Center or any other appropriate source, beyond the NPRC, the Board finds that the RO failed to comply with the January 2018 Board Remand directives. Accordingly, attempts to obtain a complete set of the Veteran's STRs and SPRs, to include records of all treatment dated while the Veteran was deployed in Iraq from September 2005 through April 2006, as well as any unassociated treatment records pertaining to his service in the Marine Corps Reserve, should be made on remand. The Board further notes that the January 2018 remand also requested that the RO obtain addendum medical opinions for the Veteran's claimed lumbar and cervical spine, left wrist, right shoulder, and right knee disabilities after obtaining all outstanding records, to include STRs, SPRs, and post-service treatment records. Specifically, the Board asked the VA examiner to identify the likely cause of the Veteran's diagnosed lumbosacral strain, cervical strain, left wrist sprain, bilateral rotator cuff tendonitis, right bicipital tendonitis, right trapezius strain, and of his claimed right knee pain. To this end, the Board asked the examiner to opine as to whether it was at least as likely as not that each of the aforementioned disabilities began in, or were otherwise etiologically related to, his service. In addition, if the examiner deemed any of the aforementioned disabilities to be unrelated to the Veteran's active duty service, the Board indicated that the examiner should, if possible, identify the more likely cause of the disability and explain why such was so. See January 2018 BVA Decision. As discussed above, the RO did not comply with the January 2018 Board remand directives, and a complete set of the Veteran's STRs and SPRs has not been associated with the claims file. To this end, the Board notes that there no STRs dated while the Veteran was deployed in Iraq, from September 2005 through April 2006, currently associated with the evidentiary record. However, the Veteran underwent a VA examination for shoulder and arm conditions in November 2019 and the requested addendum opinions were obtained the same month. Significantly, the Board notes that each of the negative November 2019 VA medical opinions were based, at least in part, on the absence of in-service complaints or treatment to corroborate the Veteran's statements regarding in-service injures and the onset of his claimed lumbar spine, cervical spine, left wrist, right shoulder, and right knee disabilities. See November 2019 C&P examination. Thus, the Board finds that the November 2019 VA medical opinion is based, at least in part, on an incomplete factual premise, and currently inadequate to adjudicate the issue on appeal. See Reonal v. Brown, 5 Vet. 458, 461 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). The Board further notes that the Veteran submitted a private medical opinion from Dr. Colin DeFord, pertaining to his claimed lumbar and cervical spine disabilities, dated in March 2021. Specifically, Dr. DeFord opined that it was at least as likely as not that the Veteran's military service, to include his April 2006 motor vehicle accident, could have played some role in the onset of this diagnosed osteoarthritis. However, Dr. DeFord went on to explain that it was impossible to precisely determine what may have caused the Veteran's diagnosed arthritis or where it came from as a combination of factors often contributed to such. In addition, Dr. DeFord indicated that osteoarthritis of the spine was very common in all portions of the population. See May 2021 Medical Treatment Record Non-Government Facility. The Board finds the March 2021 private medical opinion from Dr. DeFord to be inadequate as it is speculative in nature. The Board further notes that, following the January 2018 Board remand, the Veteran indicated that his claimed disabilities may have been caused or aggravated by wear and tear incurred while he was stationed in Iraq. To this end, he testified that he was assigned to a Force Protection running Unit and was required to ride in a Humvee while it traversed rough, uneven terrain for hours at a time while performing quick reaction forces (QRF) base and outpost security. He further stated that he had to wear Kevlar and flak jackets with small arms protective insert (SAPI) plates that weighed approximately 60 to 70 pounds while riding in the Humvee, which made it difficult to walk. In addition, the Veteran stated that his current disabilities may be related to back, neck, wrist, and left arm injuries he sustained in a motor vehicle accident in April 2006, after he returned from his deployment in Iraq but before he was discharged from active duty service. To this end, the Veteran reported that he chose to use his accumulated leave time following the accident because his back injuries prevented him from participating in fitness activities with his unit. See May 2021 Hearing Transcript, pages 3-14. Alternatively, the Veteran indicated that his symptoms may have been caused by exposure to environmental hazards in the Persian Gulf or by an undiagnosed illness or by a medically unexplained chronic multi-system illness (MUCMI). See June 2012 NOD; June 2013 VA Form 9. In addition, he stated that his current right shoulder disability may have been caused or aggravated by his service-connected left shoulder disability. See May 2021 Hearing Transcript, page 10. The Board notes that, with the exception of the March 2021 private medical opinion discussed above, the medical opinions of record have not addressed whether the Veteran's claimed disabilities may have been caused or aggravated by his April 2006 motor vehicle accident. The Board further notes that the medical opinions currently of record have not specifically considered whether the Veteran's claimed disabilities may have been caused by wear and tear incurred while traversing rough, uneven terrain in approximately 60 to 70 pounds of gear and equipment while he was stationed in Iraq, whether the Veteran's diagnosed lumbar and cervical spine, left wrist, right shoulder, right knee, and right ankle disabilities may be etiologically related to exposure to environmental hazards while he was serving in the Persian Gulf, or whether the Veteran's diagnosed right shoulder disabilities may be related to his service-connected left shoulder disability. Accordingly, the Board finds that a remand is also required to obtain addendum medical opinions to properly adjudicate the issues on appeal. Lastly, the Board notes that the Veteran has indicated that he received treatment at Taylor Physical Therapy from February 2021 to May 2021. See April 2021 VA Form 21-4142 Authorization for Release of Information. However, no private treatment records from Taylor Physical Therapy have been associated with the claims file. As such, the Board finds that a remand is also necessary to obtain any outstanding treatment records from Taylor Physical Therapy dated from February 2021 to May 2021. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file, to include any private treatment records from Taylor Physical Therapy dated from February 2021 to the present. 2. Contact any appropriate source (i.e., the National Personnel Record Center, the VA Records Management Facility in St. Lewis, Missouri, and/or the Veteran's Reserve/National Guard Unit, if applicable) to obtain the Veteran's complete service treatment records and service personnel records, to include all service treatment records dated from September 2005 through April 2006 and any unassociated records pertaining to the Veteran's service in the Marine Corps Reserve, including records from period of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The Board emphasizes that the Veteran's service personnel records reveal that he was assigned to Battery C, 1st Battalion, 14th Marines from July 2004 to April 2005; Battery C, 1st Battalion, 14th Marines, 4th Marine Division IV from April 2005 to June 2005 and from April 2006 to June 2006; 5th Battalion, 14th Marines, Area Security Company from June 2005 to September 2005; and 5th Battalion, 14th Marines, Area Security Company, 1 Marine Expeditionary Force Information Group from October 2005 to April 2006. See August 2019 DPRIS Response. All requests and responses received from each contacted entity should be associated with the claims file. If any of the requested service treatment or service personnel records are unavailable, issue a formal finding of unavailability and notify the Veteran and allow him the opportunity to submit any medical records in his possession. 3. After completion of the above development, obtain an opinion from an appropriately qualified examiner to determine the nature and etiology of the Veteran's claimed lumbar and cervical spine disabilities. It is up to the discretion of the examiner as to whether an in-person examination is necessary. The examiner should provide the following opinions: (a.) Identify all diagnoses pertaining to the Veteran's claimed lumbar and cervical spine disabilities. The examiner should address the prior findings and diagnoses, to include lumbosacral strain (May 2016 VA examination), cervical strain (May 2016 VA examination), cervicalgia (February 2021 private treatment record), mild spondylosis L5-S1 in at least mild foraminal narrowing (March 2021 x-ray), mild cervical spondylosis C5-C7 (March 2021 x-ray), and osteoarthritis of the spine at multiple levels (March 2021 private treatment record). If the examiner determines that any prior diagnoses are incorrect, he or she should provide an explanation for why the diagnosis was in error. (b.) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed lumbar or cervical spine disabilities were caused by, or are otherwise etiologically related to, the Veteran's service, to include as due to a twisting injury sustained in Fort McCoy, Wisconsin, wear and tear incurred while traversing rough terrain in a Humvee in Iraq, and an April 2006 motor vehicle accident. Please explain why or why not. (c.) The examiner must also provide an opinion as to whether there are any symptoms of the Veteran's claimed lumbar and cervical spine disabilities that are not attributable to a known clinical diagnosis. If so, the examiner must then provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness due to service in Southwest Asia during the Gulf War. The examiner should review the Veteran's claims file in connection with the examination. The examiner should specifically consider the November 2019 VA medical opinion, the March 2021 private medical opinion from Dr. Colin DeFord, and any conflicting medical evidence of record, to include the records identified in the body of this Remand. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 4. After completion of the development in #1 and #2, obtain an opinion from an appropriately qualified examiner to determine the nature and etiology of the Veteran's claimed left wrist disability. It is up to the discretion of the examiner as to whether an in-person examination is necessary. The examiner should provide the following opinions: (a.) Identify all diagnoses pertaining to the Veteran's claimed left wrist disability. The examiner should address the prior findings and diagnoses, to include chronic, bilateral wrist sprain (May 2016 VA examination). If the examiner determines that any prior diagnoses are incorrect, he or she should provide an explanation for why the diagnosis was in error. (b.) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left wrist disability was caused by, or is otherwise etiologically related to, the Veteran's service, to include as due to wear and tear incurred while traversing rough terrain in a Humvee in Iraq and an April 2006 motor vehicle accident. Please explain why or why not. (c.) The examiner must also provide an opinion as to whether there are any symptoms of the Veteran's claimed left wrist disability that are not attributable to a known clinical diagnosis. If so, the examiner must then provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness due to service in Southwest Asia during the Gulf War. The examiner should review the Veteran's claims file in connection with the examination. The examiner should specifically consider the November 2019 VA medical opinion and any conflicting medical evidence of record, to include the records identified in the body of this Remand. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 5. After completion of the development in #1 and #2, obtain an opinion from an appropriately qualified examiner to determine the nature and etiology of the Veteran's claimed right shoulder disability. It is up to the discretion of the examiner as to whether an in-person examination is necessary. The examiner should provide the following opinions: (a.) Identify all diagnoses pertaining to the Veteran's claimed right shoulder disability. The examiner should address the prior findings and diagnoses, to include right bicipital tendonitis (May 2016 and November 2019 VA examinations), bilateral rotator cuff tendonitis (May 2016 and November 2019 VA examinations), and right trapezius strain (May 2016 and November 2019 VA examinations). If the examiner determines that any prior diagnoses are incorrect, he or she should provide an explanation for why the diagnosis was in error. (b.) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right shoulder disability was caused by, or is otherwise etiologically related to, the Veteran's to service, to include as due to wear and tear incurred while traversing rough terrain in a Humvee in Iraq and an April 2006 motor vehicle accident. Please explain why or why not. (c.) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right shoulder disability was (i) caused or (ii) aggravated by his service-connected left shoulder disability? Please explain why or why not. The examiner should observe that permanent aggravation is not required. If aggravation is found, the examiner should identify, to the extent possible, the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to the Veteran's service-connected left shoulder disability. (d.) The examiner must also provide an opinion as to whether there are any symptoms of the Veteran's claimed right shoulder disability that are not attributable to a known clinical diagnosis. If so, the examiner must then provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness due to service in Southwest Asia during the Gulf War. The examiner should review the Veteran's claims file in connection with the examination. The examiner should specifically consider the November 2019 VA medical opinion and any conflicting medical evidence of record, to include the records identified in the body of this Remand. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 6. After completion of the development in #1 and #2, obtain an opinion from an appropriately qualified examiner to determine the nature and etiology of the Veteran's claimed right knee and right ankle disabilities. It is up to the discretion of the examiner as to whether an in-person examination is necessary. The examiner should provide the following opinions: (a.) Identify all diagnoses pertaining to the Veteran's claimed right knee and right ankle disabilities. (b.) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right knee or right ankle disabilities were caused by, or are otherwise etiologically related to, the Veteran's to service, to include as due to wear and tear incurred while traversing rough terrain in a Humvee in Iraq and an April 2006 motor vehicle accident. Please explain why or why not. (c.) The examiner must also provide an opinion as to whether there are any symptoms of the Veteran's claimed right knee or right ankle disabilities disability that are not attributable to a known clinical diagnosis. If so, the examiner must then provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness due to service in Southwest Asia during the Gulf War. The examiner should review the Veteran's claims file in connection with the examination. The examiner should specifically consider the November 2019 VA medical opinion and any conflicting medical evidence of record, to include the records identified in the body of this Remand. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.