Citation Nr: 21006051 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-42 099 DATE: February 3, 2021 REMANDED Entitlement to service connection for joint pain, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran had active military service from August 1986 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2015 and February 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in November 2018, when it was remanded for further development. Entitlement to service connection for joint pain, a back disorder, and right and left disorders Pursuant to the November 2018 Board remand, VA medical opinions were requested regarding the Veteran’s claimed joint conditions, including her hip, elbow, neck, back, bilateral knee, and bilateral shoulder conditions. The examiner was directed to address the Veteran’s contentions regarding her joint conditions being related to her Gulf War exposures, to apply the correct clear and unmistakable legal standard for any opinions provided regarding a preexisting condition, and to address whether the Veteran’s joint/orthopedic conditions could be related to the rigors of service, as argued by the Veteran in February 2016 notice of disagreement and August 2016 substantive appeal to the Board. The Board finds that the prior remand directives were not substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) Regarding the Veteran’s claimed back condition, the October 2019 VA examiner stated that the Veteran’s scoliosis clearly and unmistakably preexisted service, as it is a congenital disorder. The examiner further stated that the Veteran currently has degenerative disc disease (DDD), and scoliosis does not cause or aggravate DDD as the Veteran’s DDD is attributed to advancing age. However, the examiner did not address whether the Veteran’s preexisting scoliosis clearly and unmistakably was not aggravated by her time in service, including due to the rigors of service, such as carrying heavy rucksacks. In addition, the examiner did not address the Veteran’s statements regarding her back pain being due to the rigors of service, nor did the examiner provide any supporting rationale regarding why, in the Veteran’s particular case, it is more likely the Veteran’s DDD is due to advancing age and not due to the rigors of service, as asserted by the Veteran. Regarding the Veteran’s bilateral shoulder conditions claim, the October 2019 examiner stated that the Veteran has degenerative arthritis of the acromioclavicular joint in the right shoulder and acromiohumeral osteoarthritis in the left shoulder, and that these conditions are due to advancing age. However, the examiner did not address the Veteran’s contentions regarding her shoulder conditions being related to the rigors of service, including carrying heavy rucksacks, or the service treatment record (STR) from October 1987 in which the Veteran reported pain between her shoulder blades occurring daily and increasing with walking or sitting. In addition, the examiner did not provide a supporting rationale explaining why, in the Veteran’s particular case, it is more likely her bilateral shoulder conditions are due to age as opposed to the rigors of service. Finally, the record shows that the Veteran has a diagnosis of bilateral patellofemoral pain syndrome in her knees. However, an opinion regarding whether this joint condition is due to the rigors of service, as asserted by the Veteran, has not been adequately addressed in this case. As such, the Board finds that a remand is necessary in order to address the deficiencies noted above and the Veteran’s contentions regarding the rigors of service, as noted in the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for an acquired psychiatric disorder The November 2018 Board remand noted that the prior VA opinions stated that the Veteran had a preexisting psychiatric condition. However, the prior opinions did not use the correct clear and unmistakable legal standard. In the September 2019 VA opinion obtained pursuant to the Board remand, the examiner addressed the Veteran’s anxiety disorder. However, the record shows a diagnosis of depressive disorder during the appeal period, noted in the October 2015 and November 2017 VA examinations. As noted in the prior remand directives, the examiner was to address any currently diagnosed psychiatric disorder, which includes any within the appeal period, and whether the psychiatric condition clearly and unmistakably preexisted service and if so, was clearly and unmistakably not aggravated by her time in service. The September 2019 opinion only addressed the Veteran’s anxiety disorder. As such, a remand is necessary in order to obtain an opinion regarding any diagnosed psychiatric disorders during the appeal period. The matters are REMANDED for the following action: 1. Obtain an addendum opinion (and examination, if found necessary), with a medical professional of appropriate expertise. The examiner is requested to review the record and offer opinions as to the following: (a) whether it is at least as likely as not (i.e., probability of approximately 50 percent) the Veteran’s bilateral knee patellofemoral pain syndrome (as noted in the October 2015 VA examination), is related to service, including the rigors of service, as asserted in the Veteran’s February 2016 notice of disagreement and August 2016 substantive appeal. (b) whether it is at least as likely as not (i.e., probability of approximately 50 percent) the Veteran’s right and left shoulder disorders are related to service, including the rigors of service, as asserted in the Veteran’s February 2016 notice of disagreement and August 2016 substantive appeal. The examiner should also address the Veteran’s October 1987 in-service report of daily pain between her shoulder blades. For the Veteran’s back, the examiner is requested to review the record and offer opinions as to the following: (a) whether it is at least as likely as not (i.e., probability of approximately 50 percent) the Veteran’s degenerative disc disease of the spine is related to the Veteran’s military service, including the rigors of service, as asserted in the Veteran’s February 2016 notice of disagreement and August 2016 substantive appeal. (b) whether the Veteran’s preexisting scoliosis, as noted in the service treatment records, was clearly and unmistakably NOT aggravated during service; or whether, it is clear and unmistakable that any increase in service was due to the natural progress of the disorder. For any other reported joint pain in the Veteran’s medical record, including the hip, elbow, and neck, the examiner is to provide an opinion as to whether the disability patterns are consistent with: (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis; and IF, after reviewing the claims file, it is determined that the Veteran’s disability pattern is consistent with either (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to environmental exposures experienced during active duty, to include her service in Southwest Asia. A complete rationale should be given for all opinions expressed. 2. Obtain an addendum opinion (and examination, if found necessary), with a medical professional of appropriate expertise. The examiner is requested to review the record and offer opinions as to the following: (a) Is there clear and unmistakable evidence (obvious, manifest, and undebatable) that the Veteran’s depressive disorder, as noted in October 2015 and November 2017 VA examinations, preexisted the Veteran’s active service (August 1986 to September 1992)? (b) If so, state whether there is clear and unmistakable evidence that the preexisting psychiatric disorder was NOT aggravated (i.e., permanently worsened) during service; or whether, it is clear and unmistakable that any increase in service was due to the natural progress of the disorder. (c) If the Veteran’s depressive disorder is NOT found to clearly and unmistakably exist prior to service, the examiner should opine as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that it is related to service. The examiner should consider the Veteran’s treatment in October 1987 for suicidal ideation and reports of mental health issues during service. A complete rationale should be given for all opinions expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, 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.