Citation Nr: 21006247 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-20 317A DATE: February 3, 2021 REMANDED Entitlement to service connection for bilateral ankle strain, including as secondary to service-connected disabilities, is remanded. Entitlement to service connection for lumbar spine strain, including as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a respiratory condition is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1965 to May 1967, February 1970 to July 1973, and July 1973 to May 1987. The evidence of record also reflects that the Veteran served in the Reserve. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board previously remanded this matter in April 2018 and January 2020. 1. Entitlement to service connection for bilateral ankle strain, including as secondary to service-connected disabilities is remanded. 2. Entitlement to service connection for lumbar spine strain, including as secondary to service-connected disabilities is remanded. 3. Entitlement to service connection for a respiratory condition is remanded. Unfortunately, another remand is required in this case. The Board sincerely regrets the additional delay; however, further evidentiary development is necessary before the Veteran’s claims for service connection can be adjudicated on the merits. As a preliminary matter, the Board notes that there are service treatment records affiliated with the claims file that are dated after May 1987. Accordingly, the Board finds that there is a question as to the precise dates of all periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA) in addition to the Veteran’s active duty service. On remand, the RO should confirm the Veteran’s periods of ACDUTRA and INACDUTRA. Further, any service treatment records affiliated with the Veteran’s periods of ACDUTRA and/or INACDUTRA should be obtained and associated with the claims file. In April 2020, the VA received various medical opinions as to the natures and etiologies of the Veteran’s bilateral ankle, lumbar spine, and respiratory conditions. However, the Board finds that addendum opinions are warranted. Regarding the Veteran’s bilateral ankle strain, the Board notes that there are service treatment records in which the Veteran reports “swollen or painful joints,” but does not specify as to which joints are swollen and/or painful. Further, the Board acknowledges the possibility and probability that any service records related to the Veteran’s ACDUTRA and/or INACDUTRA, may reflect complaints of and/or treatment for his bilateral ankles. Accordingly, the Board finds that an addendum opinion is warranted as to the etiology of the Veteran’s bilateral ankle strain. Concerning the Veteran’s lumbar strain, the April 2020 clinician found that the Veteran’s condition was less likely than not linked to his service. The clinician reasoned that there was “no evidence of the diagnosis or treatment for lumbar strain while on active duty or within one year of separation.” However, the Veteran’s service treatment records reflect numerous complaints of back pain. See September 1979 Service Treatment Record; March 1982 Report of Medical History; February 1984 Service Treatment Record; January 1985 Service Treatment Records; December 1986 Service Treatment Records; January 1987 Service Treatment Record; May 1994 Service Treatment Records. As such, the Board finds that the April 2020 opinion is based on an inaccurate factual premise and is thus inadequate to ascertain the etiology of the Veteran’s lumbar spine condition. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). Consequently, the Board finds that an addendum opinion regarding the etiology of the Veteran’s lumbar spine condition should be obtained on remand. Finally, relating to the Veteran’s claim for service connection for a respiratory condition, the April 2020 examiner found that bronchitis is caused by viruses and/or bacteria and specified that mycoplasma pneumoniae, chlamydia pneumonia, and Bordetella pertussis are among the common causes of acute bronchitis and that even after a viral infection has cleared, the irritation it causes can continue to cause symptoms for weeks. In service, the Veteran was assessed to rule out mycoplasma pneumonia, was diagnosed with chronic bronchitis, and was diagnosed with frequent upper respiratory infections. See May 1983 Chest X-Ray; December 1971 Service Treatment Record; September 1974 Service Treatment Record; March 1976 Service Treatment Record; January 1977 Service Treatment Record; September 1979 Service Treatment Record; April 1980 Service Treatment Record; October 1983 Service Treatment Record; December 1983 Service Treatment Record; April 1984 Service Treatment Record; April 1985 Service Treatment Record; October 1985 Service Treatment Record; April 1986 Service Treatment Records; October 1986 Service Treatment Records. The April 2020 opinion did not address the Veteran’s pertinent service treatment records indicating his various diagnoses, and therefore, the Board finds that an addendum opinion must also be obtained on remand regarding the Veteran’s current respiratory condition. The matters are REMANDED for the following action: 1. The RO should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard a report detailing the Veteran’s award of reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of active duty, ACDUTRA, and INACDUTRA must be verified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. All medical treatment records associated with the Veteran’s ACDUTRA and INACDUTRA should also be obtained and associated with the claims file. 2. After completing the foregoing development, return the claims file to the clinician who authored the April 2020 opinion for an addendum opinion to determine the nature and etiology of the Veteran’s bilateral ankle strain. If this clinician is not available, forward the claims file to another clinician with the appropriate expertise. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral ankle sprain manifested during, or is the result of, his active duty service, ACDUTRA, and/or INACDUTRA. The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral ankle sprain was either (i) caused or (ii) aggravated by his service-connected disabilities. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected condition. If aggravation is found, the clinician should attempt to identify the baseline level of disability prior to such aggravation. In formulating his or her opinions, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (a) The Veteran’s service treatment records; (b) The Veteran’s post-service VA medical records; and (c) The Veteran’s competent lay statements associated with the claims file regarding the onset and continuity of his symptomatology. If the clinician determines that the Veteran’s bilateral ankle strain is less likely than not due to his active duty service, ACDUTRA, and/or INACDTURA, and/or that it is less likely than not caused and/or aggravated by his service-connected disabilities, the clinician should discuss what other factor(s) caused the disorder. In other words, the clinician should find the most likely etiology of the Veteran’s bilateral ankle strain. The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 3. Forward the claims file to the clinician who authored the April 2020 opinion for an addendum opinion to determine the nature and etiology of the Veteran’s lumbar spine strain. If this clinician is not available, forward the claims file to another clinician with the appropriate expertise. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s lumbar spine strain manifested during, or is the result of, his active duty service, ACDUTRA, and/or INACDUTRA. The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s lumbar spine strain was either (i) caused or (ii) aggravated by his service-connected disabilities. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of disability prior to such aggravation. In formulating his or her opinion, the clinician should consider and address all competent medical and lay evidence of record, including but not limited to: (a) The Veteran’s service treatment records, which reflect numerous complaints of and treatment for back pain; (b) The Veteran’s post-service VA medical records; and (c) The Veteran’s competent lay statements associated with the claims file regarding the onset and continuity of his symptomatology. If the clinician determines that the Veteran’s lumbar spine strain is less likely than not due to his active duty service, ACDUTRA, and/or INACDUTRA, and/or that is was less likely than not caused and/or aggravated by his service-connected disabilities, the clinician should discuss what other factor(s) caused the disorder. The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 4. Forward the claims file to the clinician who authored the April 2020 opinion for an addendum opinion to determine the nature and etiology of the Veteran’s current respiratory condition(s). If this clinician is not available, forward the claims file to another clinician with the appropriate expertise. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. The clinician should identify any and all respiratory conditions attributable to the Veteran throughout the appellate period. For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition manifested during, or is the result of, his active duty service and/or ACDUTRA. In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (a) The Veteran’s service treatment records, including records diagnosing the Veteran with various respiratory conditions and upper respiratory infections; (b) The Veteran’s post-service VA medical records; and (c) The Veteran’s competent lay statements associated with the claims file regarding the onset and continuity of his symptomatology. If the clinician determines that the Veteran’s respiratory condition(s) is/are less likely than not due to his active duty service and/or ACDUTRA, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.