Citation Nr: 21077470 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-43 152 DATE: December 29, 2021 REMANDED Entitlement to service connection for a left arm disability is remanded. Entitlement to service connection for a left ovarian disorder is remanded. Entitlement to service connection for a skin disability of the neck is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1981 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the January 2016 rating decision denied the Veteran entitlement to a left arm disability, a left ovarian disorder, a skin disability of the neck, and a right knee disability, among a number of other issues. The Veteran filed a timely Notice of Disagreement (NOD) in February 2016 for those four issues only. She was issued a statement of the case (SOC) in July 2018, and she filed a timely VA Form 9 in August 2018. Her claims were then certified to the Board in March 2019. In a Board Decision from July 2019, the issues of entitlement to service connection for a left arm disability, a skin condition of the neck, and the left ovarian disorder were each denied. That same decision remanded the issue related to the right knee disability. The Veteran, through her Representative, appealed the denied claims to the Court of Appeals for Veterans Claims (Court), and in a Memorandum Decision from May 2021, the Court vacated the portion of the July 2019 Board Decision that denied entitlement to service connection for the left arm disability, the skin condition of the neck, and the left ovarian disorder. As the right knee disability claim had not been finally decided due to the Board remand, that issue was left undisturbed. Those three issues were remanded to the Board for additional development. Simultaneously in May 2021, the issue related to the right knee disability had returned to the Board, but the Board again remanded it again for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, each of the above-listed claims has returned to the Board and is currently on appeal. Having said that, the Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for a left arm disability; service connection for a left ovarian disorder; and service connection for a skin disability of the neck are each remanded. As discussed above, the Veteran's claims for entitlement to service connection for a left arm disability, a left ovarian disorder, and a skin disability of the neck were each denied in a Board Decision from July 2019. Those denials were then vacated by the Court in a May 2021 Memorandum Decision. Specifically, the Court in May 2021 found that the Board had not met its duty to assist when it made no attempt to obtain the Veteran's Army Reserve records. While the Board had obtained service treatment records from 1981 to 1994, the Board did not obtain Army Reserve records from 1994 forward. The Court reasoned that this was particularly relevant and used the example of a May 1998 Reserve medical record noting "treatment for a neck rash and that the Veteran was serving in the reserve component support group." They also cited "a June 1998 report of medical history" noting the Veteran's service in the Army Reserve. The Court then found that the "potentially outstanding records to not lack relevance simply because they predate the Veteran's claim." Considering the May 2021 Memorandum Decision, the Board acknowledges that the Veteran's Army Reserve records may contain relevant information regarding her service-connected claims, particularly as it relates to chronicity of care following her active-duty service. Therefore, pursuant to VA's Duty to Assist, the claims must be remanded so that the RO can obtain such Army Reserve records, and those records can be associated with the claims file. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 2. Entitlement to service connection for a right knee disability is remanded. The Veteran has claimed that her right knee disability is due to her active-duty service. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). As noted above, the Veteran's claim was originally before the Board in July 2019, and the issue was remanded. The Board remanded the Veteran's claim because a VA examination from March 2018 denied that the Veteran had a current diagnosis of a right knee disability, despite finding that the Veteran had pain and functional limitations of that right knee. As such, the Veteran's claim was remanded for an additional VA examination, pursuant to Saunders. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability). That VA examination took place in October 2019. However, when the Veteran's claim returned to the Board in May 2021, the Board again determined that the October 2019 VA examination was inadequate. Specifically, the Board noted that the examiner again denied a current diagnosis, despite the Veteran's claims of pain and functional loss to her right knee. The Board also pointed to lay statements submitted by the Veteran, as well as private medical treatment records showing multiple diagnoses of the right knee, including patellofemoral syndrome of the right knee, chronic pain in the right knee, mild prepatellar bursitis, internal derangement, and hypertrophic synovitis. The Board also noted that she had surgery on her right knee in both April and May 2020. As such, the claim was remanded again for a VA examination. That VA examiner was to specifically consider the Veteran's lay statements, her in-service right knee injury from June 1988, her private treatment records, and the multiple right-knee diagnoses. That VA examination occurred June 2021. The Veteran was not seen in person, although that was not requested by the Board's prior remand directives. The examiner indicated that the Veteran's claims file was reviewed. The examiner then wrote that the Veteran's right knee disability was less likely than not due to her service. The following rationale was included: The right knee condition (mild prepatellar bursitis) was diagnosed in 2020. Now then any patellofemoral syndrome in [June 1988] resolved by [separation] exam which states normal knees. So since [separation exam] states normal knees and prior [October 2019 disability benefits questionnaire] likewise states right knee normal then the MRI right knee 2020 condition occurred in 2020, which is 26 years post separation and is less likely than not due to any service condition in [June 1988]. As such, a negative etiological opinion was included. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In consideration of the above, the Board finds that the June 2021 VA addendum opinion is inadequate. To begin, the opinion provided is brief and conclusory, stating that the Veteran's disability resolved following service, but not acknowledging the other diagnoses that the Board had previously directed the examiner to discuss. Furthermore, the examiner denied that the Veteran had a diagnosis prior to 2020, despite her treatment records indicating various diagnoses, which resulted in two separate right knee surgeries towards the beginning of 2020. Perhaps most importantly, the June 2021 VA addendum opinion relied on the October 2019 VA examination for determining that a diagnosis was not present. This is problematic, as the Board has already determined that the October 2019 VA examiner's conclusion that no diagnosis was present was incorrect pursuant to Saunders. As such, the June 2021 addendum opinion is based on an inaccurate factual premise that premise being that she did not have a diagnosis in October 2019, and therefore, that the diagnosis first appeared in 2020. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that she is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran should be afforded an in-person VA examination which accounts for her multiple diagnoses, a possible diagnosis pursuant to Saunders, her lay statements, and her private treatment records. The Board also finds that, as her other claims are being remanded for service records from her time in the Army Reserves, which as the Court determined in May 2021 might contain further evidence of chronicity of care, any VA examination should include consideration of those Army Reserve records, which may provide additional details as to possible chronicity of care for her right knee disability. The matters are REMANDED for the following action: 1. Obtain and associate with the electronic claims file the Army Reserve treatment and personnel records. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e). 2. Verify through the appropriate agencies the Veteran's specific dates of ACDUTRA or INACDUTRA. The RO should prepare a summary of such dates, or document for the record why the production of a summary of service dates is not possible. 3. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 4. After the receipt of an additional medical records, to include the requested Army Reserve service records, regarding the left arm disability, skin disability of the neck, and the left ovarian disorder, schedule the Veteran for an in-person VA medical examination with the appropriate clinician(s). The entire claims file, to include a copy of this remand, should be made available for the clinician to review, and the reports should reflect that such review was accomplished. The clinician should consider the lay statements of the Veteran. The examiner is asked to offer opinions as to the following: Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's left arm disability, skin disability of the neck, and the left ovarian disorder had their onset in service or is otherwise related to service? 5. Regarding the right knee disability claim, following steps 1-3, schedule the Veteran for an in-person VA medical examination with an appropriate clinician with orthopedic expertise in regard to her claim of entitlement to service connection for a right knee disability. The entire claims file, to include a copy of this remand, should be made available for the clinician to review, and the reports should reflect that such review was accomplished. The clinician should consider the lay statements of the Veteran. The examiner is asked to offer opinions as to the following: (a.) the examiner is to provide a diagnosis which accounts for any/all of the Veteran's present symptoms of her right knee disability for the entire period on appeal, beginning in September 2015. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as pain, or instability. Complete the "Functional Impact" section of the report. **Please note new case law: pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). The examiner is also reminded that the March 2018 and October 2019 VA examinations have been deemed inadequate by the Board, as they denied that the Veteran had a current diagnosis, despite the holding in Saunders. Then, for any/all disabilities found since September 2015, address: (b.) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's diagnosed right knee disability had its onset in service or is otherwise related to service? The examiner's attention is drawn to the Veteran's in-service right knee patellofemoral syndrome, diagnosed in June 1988, her private treatment records which include two separate right knee surgeries, and any subsequent Army Reserve treatment records that may indicate chronicity of care for the right knee. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 6. Thereafter, readjudicate the four issues on appeal as noted above. If the determination remains unfavorable to the Veteran, she and her Representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her Representative should be afforded the applicable time period to respond. JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.