Citation Nr: 21077617 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 19-02 228 DATE: December 30, 2021 ORDER Entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s) is dismissed. REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a left hip or gluteus medius muscle disorder is remanded. Entitlement to service connection for a stomach or gastrointestinal disorder is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity sciatic nerve radiculopathy is remanded. FINDING OF FACT In a June 2021 rating decision, the Regional Office (RO) granted entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s), which represents a full grant of the benefit sought on appeal. CONCLUSION OF LAW As the benefit sought on appeal has been granted in full, there remains no question of law or fact on appeal, and the appeal is dismissed as to the claim for SMC at the housebound rate under 38 U.S.C. § 1114(s). 38 U.S.C. § 7105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to March 1973. He served honorably in the U.S. Navy, including service in the Philippines during the Vietnam era. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board videoconference hearing in February 2020. A transcript of the hearing is of record. The Board previously remanded this case in May 2020 for additional development. In August 2021, the Veteran submitted additional evidence, which will be discussed in greater detail below. The case has now returned to the Board for further appellate review. The Board notes the Veteran's attorney's February 2021 statement that a binder submitted to the undersigned at the February 2020 hearing appears to have disappeared. The Board observes that the binder, with documents Bates numbered 000001 through 000278, was associated with the record on February 28, 2020. Entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) In a June 2021 rating decision, after the matter was certified to the Board, the RO granted entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s). (The Board observes that in August 2021 the Veteran filed a VA Form 10182 appealing the effective date of the award.) The Board finds that the Veteran's appeal as to the issue has been rendered moot, as the benefit sought on appeal has been fully granted. As there remains no case or controversy for the Board to resolve, the issue is dismissed. 38 U.S.C. § 7105(d)(5). REASONS FOR REMAND In February 2021 correspondence, the Veteran's attorney objected to the competence of a November 2020 VA examiner, stating that the examiner was "incompetent, unqualified, and grossly negligent in the evaluations" and "had no specialization or requisite experience in the specialties" in which he was performing professional services. As the attorney raised the issue of the examiner's competence, the examiner's curriculum vitae should be requested and provided to the Veteran and his attorney to provide them the opportunity to make a more informed argument as to why the examiner would not be qualified to evaluate and render opinions as to the Veteran's claims. 1. Entitlement to service connection for a left shoulder disorder is remanded. 2. Entitlement to service connection for a left hip or gluteus medius muscle disorder is remanded. A remand is warranted to ensure substantial compliance with the May 2020 Board decision. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the May 2020 Board remand, the Board directed the examiner to opine as to whether the Veteran's left hip disorder is at least as likely as not caused or aggravated by his service-connected lumbar spine disability and radiculopathy. However, there is no such opinion of record. A remand is further warranted as addendum opinions are necessary. At the February 2020 hearing, the Veteran testified that he landed on his left side on concrete asphalt and that he experienced pain in his back and left leg and in his left shoulder. In a November 2020 VA examination report, the examiner concluded that the Veteran's left shoulder and left hip disorders are less likely than not related to service. The examiner noted that there is no evidence of a left shoulder or left hip disorder on enlistment or separation examination, no evidence of a left shoulder or left hip disorder in the service treatment records, and no evidence in the medical records to support that the disorders were due to or caused by the Veteran's in service fall. The examiner stated that there is no evidence of record supporting that the left shoulder disorder began during service or is related to service, and no evidence of the severity or significance of the left shoulder injury in the medical records due to the March 1971 fall. The examiner stated, "I can only speculate that the veteran's injuries were caused by a fall" but that there was no evidence in the medical records to support that. Although the examiner relied on the lack of service medical record evidence, the examiner did not explain whether any left shoulder and left hip symptoms would have been noted in his service records and whether he would have sought treatment for such injuries, particularly in light of the Veteran's report that his main focus was his lower back which required multiple surgeries. Further, the examiner did not explain why the March 1971 fall less likely than not later led to the development of the Veteran's current left shoulder and left hip disorders. Further, the examiner did not provide a rationale as to why it would be speculative to conclude that the Veteran's injuries were caused by a fall. Accordingly, a remand is necessary. In an August 2021 private opinion, Dr. J.F. concluded that the Veteran's 1983 left shoulder surgery directly correlated with the subsequent development of severe left glenohumeral joint arthritis. Dr. J.F. further concluded that the surgery was a result of his March 1971 fall. With respect to the left hip disorder, Dr. J.F. stated that there is no explanation which would explain moderate osteoarthritis of both hips other than the March 1971 fall. However, there no rationale was provided for these conclusions. The Veteran is advised that while Dr. J.F. notes a July 24, 2021 x-ray showing mild to moderate osteoarthritis of both hips, this evidence has not been associated with the record. 3. Entitlement to service connection for a stomach or gastrointestinal disorder is remanded. A remand is warranted as an addendum opinion is necessary. In the November 2020 VA examination report, the Veteran reported that after his appendectomy he began having issues with abdominal cramping, excessive diarrhea, episodes where he broke out in sweat, and passing out. The examiner concluded that a stomach or gastrointestinal disorder is less likely than not related to service. The examiner noted no evidence of a stomach or gastrointestinal condition in his enlistment or separation examinations or in the service treatment records. The examiner noted that irritable bowel syndrome was diagnosed more than 30 years after separation. The examiner also stated that there is no evidence in medical records to support that the Veteran's disorders are due to in-service appendicitis and appendectomy. The examiner added that appendicitis and appendectomies do not generally contribute to irritable bowel syndrome or diverticulosis and that there was no evidence of record to support that. The examiner stated that irritable bowel syndrome could be due to adhesions but that there was no evidence of adhesions on any diagnostic studies in the Veteran's medical records. However, the examiner did not address the Veteran's report of abdominal symptoms starting after his appendectomy or explain whether abdominal pain, which the Veteran reported in a November 2011 private treatment record as ongoing since his appendectomy, and other symptoms were evidence that his current disorder had its onset in service. Further, in August 2021, a June 2020 study was associated with the record which appears to indicate a correlation between patients who underwent an appendectomy and an increased risk of irritable bowel syndrome. 4. Entitlement to a rating in excess of 20 percent for left lower extremity sciatic nerve radiculopathy is remanded. A remand is warranted as a new examination is necessary. In the November 2020 VA examination report, the examiner noted moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner noted no other symptoms. The examiner indicated that muscle strength testing was normal and that there was no atrophy. However, the Veteran's private treatment records include various other symptoms which were not noted by the examiner. In a November 2019 letter, the Veteran's private provider noted strength of 4/5 on toe walk because of weakness and hypoesthesia into the left lower extremity. The provider noted right lower extremity circumference of 35 cm and left lower extremity circumference of 34.5 cm. In a letter associated with the record in October 2020, another private provider stated that the Veteran had experienced left foot drop since his injury, that he had pain with associated numbness and weakness in the left lower extremity, and that weakness was noted in the left extensor hallucis longus. Additionally, at the February 2020 hearing, the Veteran's spouse testified that he started falling a lot in the past 2 years and he testified that he fell a couple of weeks before due to leg weakness. Accordingly, a new examination is necessary to assess the severity of the Veteran's disability. The Board makes no credibility determinations at this time with respect to any of the issues on appeal. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disabilities on appeal. Please ask the Veteran to provide the releases necessary for VA to secure private treatment records. 2. Please associate with the claims folder a copy of the November 2020 examiner's curriculum vitae (CV) or resume or similar information If the requested information is not obtainable the reasons for such should be documented in the record. 3. After the action requested in paragraph 1 is complete, please refer the claim to an appropriate clinician for an addendum opinion as to the nature and etiology of the left shoulder disorder. The Veteran's claims-file must be made available to and reviewed by the clinician. For each left shoulder disorder current during the period on appeal, to include to include left shoulder osteoarthritis and left shoulder impingement, the clinician is requested to respond to the following: (a.) Is the Veteran's left shoulder disorder at least as likely as not (a 50 percent or greater probability) related to service and address the Veteran's February 2020 testimony that he landed on his left side on concrete asphalt and experienced left shoulder pain in his March 1971 9-foot fall from a plane. (b.) Is there any medical reason to accept or reject the proposition that the Veteran's fall on his left side, including his left shoulder, could have led to the current disorder or to frequent shoulder dislocations which resulted in the 1983 surgery? (c.) Please explain whether the 1983 surgery aligns with how the left shoulder disorder is known to develop. If the basis of a negative opinion is the absence of documented symptomology in the Veteran's service records, the clinician must explain whether (1) any such symptoms would have been noted in the Veteran's service records; and (2) the Veteran would have sought treatment for such symptoms. The VA clinician is asked to please provide a copy of his/her curriculum vitae as part of the VA examination report. ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. The clinician is advised that if an opinion cannot be rendered without resorting to mere speculation, the clinician must provide a specific explanation for why this is so. If such an opinion is not procurable based on a lack of knowledge, then the inability to offer such an opinion must be based on a lack of knowledge among the "medical community at large," and not merely a lack of expertise, insufficient information, or unprocured testing on the part of the clinician. 4. After the action requested in paragraph 1 is complete, please refer the claim to an appropriate clinician for an addendum opinion as to the nature and etiology of the left hip/gluteus medial muscle disorder or functional impairment. The Veteran's claims-file must be made available to and reviewed by the clinician. For each left hip/gluteus medial muscle disorder or functional impairment current during the period on appeal, the clinician is requested to respond to the following: (a.) Is the Veteran's left hip/gluteus medial muscle disorder or functional impairment at least as likely as not (a 50 percent or greater probability) related to service? Please consider the August 1, 2021 opinion from Dr. J.F. stating, "there is no explanation which would explain these findings other than the [March 1971 fall]." See p. 8 of document labeled "Medical Treatment Record Government Facility" received August 20, 2021. (b.) Is the Veteran's left hip/gluteus medial muscle disorder or functional impairment at least as likely as not (a 50 percent or greater probability) caused by his service connected lumbar disability and radiculopathy? (c.) Is the Veteran's left hip/gluteus medial muscle disorder or functional impairment at least as likely as not (a 50 percent or greater probability) aggravated by his service connected lumbar disability and radiculopathy? The VA clinician is advised that the questions above pertain to the Veteran's left hip/gluteus medius muscle, as distinguished from his left lower extremity radiculopathy. If the basis of a negative opinion is the absence of documented symptomology in the Veteran's service records, the clinician must explain whether (1) any such symptoms would have been noted in the Veteran's service records; and (2) the Veteran would have sought treatment for such symptoms. The VA clinician is asked to please provide a copy of his/her curriculum vitae as part of the VA examination report. ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. The clinician is advised that if an opinion cannot be rendered without resorting to mere speculation, the clinician must provide a specific explanation for why this is so. If such an opinion is not procurable based on a lack of knowledge, then the inability to offer such an opinion must be based on a lack of knowledge among the "medical community at large," and not merely a lack of expertise, insufficient information, or unprocured testing on the part of the clinician. 5. After the action requested in paragraph 1 is complete, please refer the claim to an appropriate clinician for an addendum opinion as to the nature and etiology of the Veteran's stomach or gastrointestinal disorder. The Veteran's claims-file must be made available to and reviewed by the clinician. For each disorder current during the period on appeal, to include irritable bowel syndrome, the clinician is requested to respond to the following: (a.) Is the Veteran's stomach or gastrointestinal disorder at least as likely as not (a 50 percent or greater probability) related to service, to include a February 1971 appendectomy with consideration of the Veteran's statements that he has had abdominal pains for 40 or more years since his appendectomy which a provider has suggested may be the result of an adhesion, and a paper, "Risk of irritable bowel syndrome in patients who underwent appendectomy: A nationwide population-based cohort study," which found that patients who underwent an appendectomy had an increased rate of IBS compared to patients who had not undergone an appendectomy. See document labeled "Correspondence" received 8/20/21. (b.) In responding to question (a.) above, please explain whether the Veteran's reported symptoms are generally inconsistent with medical knowledge or implausible and whether the reported symptoms align with how the disorder is known to develop. For the purpose of rendering the requested opinions, please treat as fact lay evidence of the symptoms and their onset. The VA clinician is asked to please provide a copy of his/her curriculum vitae as part of the VA examination report. ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 6. After the action requested in paragraph 1 is complete, please schedule the Veteran for an examination to assess the current severity of his left lower extremity radiculopathy of the sciatic nerve. The Veteran's claims file must be made available to and reviewed by the examiner. Any indicated tests or studies should be conducted. The examiner is requested to elicit information as to frequency, severity, and duration of any left lower extremity weakness, drop foot, and muscle atrophy. The examiner is requested to consider and address as appropriate the following: In a November 19, 2019 letter, Dr. C.M. noted strength of 4/5 on toe walk because of weakness and hypoesthesia into the left lower extremity and right lower extremity circumference of 35 cm and left lower extremity circumference of 34.5 cm. See Correspondence received 2/28/20. In a letter associated with the record on October 23, 2020, another private provider stated that the Veteran had experienced left foot drop since his injury, that he had pain with associated numbness and weakness in the left lower extremity, and that weakness was noted in the left extensor hallucis longus. At the February 2020 hearing, the Veteran's spouse testified that he started falling a lot in the past 2 years. The Veteran he testified that he fell a couple of weeks before due to leg weakness and that he could not get up from squatting due to leg weakness. He testified that atrophy had existed since he filed his claim. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The examiner should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Vashaw, 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.