Citation Nr: 21006559 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-43 015 DATE: February 4, 2021 REMANDED Service connection for a right shoulder disability is remanded. Service connection for a left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from September 1979 to September 1983. This matter is on appeal from a September 2014 rating decision by the Department of Veteran’s Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during an October 2018 hearing. The hearing transcript is of record. In May 2019, the Board of Veterans’ Appeals (Board) remanded the case to afford the Veteran a VA medical examination. The case has since been returned to the Board for appellate review. The Board will discuss the Agency of Original Jurisdiction’s (AOJ’s) compliance with its instructions below. 1. Service connection for a right shoulder disability is remanded. The Veteran was diagnosed with right shoulder cuff tendonitis during a June 2015 VA treatment appointment. During the October 2018 hearing, the Veteran testified that the same in-service accident that caused his service-connected left knee and right ankle disabilities also injured his right shoulder and that his symptoms had persisted from that injury to the present. This evidence met the threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the issue was remanded in May 2019 so that the Veteran could be provided an examination with an appropriate clinician for his right shoulder disability. In its May 2019 remand, the Board instructed that the examiner provide opinions as to whether it is at least likely as not that any current right shoulder disability, including arthritis, began in service, was caused by service, had its onset within one year of the Veteran’s separation from active duty, or is otherwise related to the Veteran’s active service. The Board specifically called the examiner’s attention to the Veteran’s testimony during the October 2018 hearing. In December 2019, the Veteran was afforded a VA examination regarding his right shoulder condition. The examiner observed that in July 1983, the Veteran stated that he had shoulder complaints, but the side was not listed, and the examination was normal. The examiner stated that there are no notes regarding a shoulder injury in service. The examiner stated that joint exams from December 1987 and October 2000 were normal with no complaints of symptoms, and chart notes from March 2015 state that the Veteran had right shoulder pain for 9 months after falling. The examiner observed that the Veteran had diagnoses of right-side bicipital tendon tear, rotator cuff tear, and labral tear dating back to March 2015. In her review of the evidence, the examiner observed the Veteran’s statement that a transmission fell on his legs in 1980. The Veteran reported that when the transmission fell on him, it “jammed” his right shoulder and tore his rotator cuff. Afterwards, the Veteran reports that his shoulder was relocated, and he was told that he would need surgery later. The examiner noted that the Veteran states that he has constant pain in his shoulder. In concluding that the Veteran’s right shoulder condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness, the examiner stated that the Veteran’s statement is not confirmed by service treatment records (STRs) and that the Veteran tore his right rotator cuff, labrum and biceps tendon from a fall reported in March 2015. While the examiner’s evidence review referenced the Veteran’s October 2018 hearing testimony, her rationale does not explicitly consider this testimony. Although the Board regrets the additional delay in this case, because there was not substantial compliance with the remand directives, another remand is necessary to afford the Veteran an addendum opinion. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the May 2019 remand directives pointed the examiner’s attention to the Veteran’s lay statements at the October 2018 hearing. Further, the remand directives explicitly stated that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. The examiner’s rationale does not explicitly address the Veteran’s October 2018 hearing testimony and solely relies on the fact that the Veteran’s STRs are silent regarding a right shoulder injury. Therefore, an addendum opinion is warranted. 2. Service connection for a left ankle disability is remanded. The Veteran was diagnosed with left ankle instability with peroneal tendonitis during a September 2011 VA treatment appointment. In a November 2011 statement, the Veteran reported constant chronic pain in both ankles and knees since an in-service accident. The Veteran underwent left ankle arthroscopy with peroneal tendon repair and Brostrom Gould modification in May 2013. During the October 2018 hearing, the Veteran testified that the same in-service accident that caused his service-connected left knee and right ankle disabilities also injured his left ankle and that his symptoms had persisted from that injury to the present. This evidence also met the threshold to warrant an examination, and the Board directed that the Veteran be scheduled for an examination in its May 2019 remand. See McClendon, 20 Vet. App. 79. In May 2019, the Board noted that during the Veteran’s July 1979 entrance examination, he reported a history of broken bones and the examiner clarified that this referred to a left ankle injury one year prior to the exam, but the examiner did not note any current left ankle condition. Therefore, the presumption of soundness attached. In its May 2019 remand, the Board instructed that the examiner provide opinions as to whether a left ankle disability clearly and unmistakably existed prior to service entrance and, if so, whether any such disability was clearly and unmistakably not aggravated during or as a result of service. Further, if the examiner did not find that a left ankle disability clearly and unmistakably existed prior to service entrance, the Board directed the examiner to provide an opinion as to whether it is at least as likely as not that any current left ankle disability, including arthritis, began in service, was caused by service, had its onset within one year of the Veteran’s separation from active duty, or is otherwise related to the Veteran’s active service. The Board specifically called the examiner’s attention to the (1) Veteran’s report of a history of broken bones at the time of his July 1979 entrance examination, which the examiner clarified was a reference to the left ankle though the examiner did not note any current left ankle disability, (2) the Veteran’s contention in a November 2011 statement that he had constant chronic pain in both ankles and knees since an in-service injury, and (3) the Veteran’s testimony during the October 2018 hearing. In December 2019, the Veteran was afforded a VA examination regarding his left ankle condition. The examiner stated that the Veteran’s history was completely at odds with that found in STRs, and that there is no mention of a crush injury or knee fracture. The examiner noted that in July 1980, the Veteran dropped a chock block on his left foot, but the x-ray was normal. The examiner observed that when the Veteran enlisted in 1979, he stated that he had broken his left ankle in 1978. The examiner also stated that although the October 2000 note states that the Veteran broke his left ankle in 1983, there is no evidence of this. The examiner noted that the Veteran stated that his first problem with his left ankle was when a 1200# transmission fell on both his legs in 1980 in service, that he broke both knees and ankles, was treated with casts on both legs, and has had constant pain ever since. The examiner found that the Veteran’s left ankle condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness because the Veteran’s story is not confirmed by STRs, and because he broke his left ankle before service. While the examiner’s evidence review references the Veteran’s lay statements, her rationale does not explicitly address the Veteran’s statements, and solely relies on the fact that the Veteran’s story is not confirmed by STRs. The Veteran was also afforded a VA medical opinion regarding his left ankle condition in September 2020. The examiner indicated that all the medical records were reviewed. However, the VA medical opinion does not reflect that the Veteran’s November 2011 statements or his testimony at the October 2018 hearing were considered in the evidence review. The examiner opined that the Veteran’s left ankle condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness because the left ankle condition did exist prior to service, therefore this question is not valid. Rather, the examiner checked off the option which stated that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In so finding, the examiner stated that medical records are consistent with the claimant having a left ankle fracture prior to enlistment into service. The examiner stated that the medical records also note another left ankle fracture after the Veteran’s active service dates. The examiner noted that the Veteran was seen in July 2012 with subjective complaints of bilateral ankle pain for years, but states that there are no medical records to validate this. The examiner stated that there are no medical records suggesting that his active duty time aggravated his left ankle condition beyond its natural progression. Because there was not substantial compliance with the remand directives, another remand is necessary to afford the Veteran an addendum opinion. See Stegall, 11 Vet. App. 268. The May 2019 remand directives specifically called the examiner’s attention to the Veteran’s lay statements made in November 2011 and his testimony at the October 2018 hearing. Additionally, the May 2019 remand directives stated that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. The examiners in both the December 2019 examination and the September 2020 VA medical opinion do not consider the Veteran’s statements in their rationales. Further, both the December 2019 examination and September 2020 VA medical opinion rely on the fact that the Veteran’s STRs are silent for a left ankle condition. Therefore, these opinions are inadequate, and an addendum opinion is warranted. As previously mentioned, the examiner in the September 2020 VA medical opinion checked off the option which stated that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner’s rationale for this opinion was primarily based on a lack of service treatment records documenting left ankle symptoms or treatment. The examiner did not discuss the Veteran’s November 2011 statements or October 2018 testimony that he has had constant chronic pain since an in-service injury. The clear and unmistakable standard is a formidable evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Therefore, as the examiner did not consider the Veteran’s lay statements in making her conclusion, an addendum opinion is necessary. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims folder to an appropriate clinician for an addendum opinion for his right shoulder disability. The entire claims file and a copy of this remand must be available to the examiner for review. The examiner must provide opinions as to whether it is at least as likely as not (a probability of 50 percent or greater) that any current right shoulder disability, including arthritis, began in service, was caused by service, had its onset within one year of the Veteran’s separation from active duty, or is otherwise related to the Veteran’s active service. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the Veteran’s testimony during the October 2018 hearing that the same in-service accident that caused his service-connected right ankle and left knee disabilities also injured his right shoulder and that symptoms had persisted from then to the present. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Provide the Veteran’s claims folder to an appropriate clinician for an addendum opinion for his left ankle disability. The entire claims file and a copy of this remand must be available to the examiner for review. The examiner must provide opinions as to the following: a. Whether a left ankle disability clearly and unmistakably existed prior to service entrance and, if so, b. Whether any such disability was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. The examiner is advised that the evidentiary standard for whether a condition existed prior to service is “clear and unmistakable,” which is a formidable evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” c. If a left ankle disability is (1) not found to have clearly and unmistakably existed prior to service or (2) it existed prior to service but there is no clear and unmistakable evidence that it was not aggravated by service, determine whether it is at least as likely as not (a probability of 50 percent or greater) that any current left ankle disability, including arthritis, began in service, was caused by service, had its onset within one year of the Veteran’s separation from active duty, or is otherwise related to the Veteran’s active service. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The Veteran’s report of a history of broken bones at the time of his July 1979 entrance examination, which the examiner clarified was a reference to the left ankle though the examiner did not note any current left ankle disability. b. The Veteran’s contention in a November 2011 statement that he had had constant chronic pain in both ankles and knees since an in-service injury. c. The Veteran’s testimony during the October 2018 hearing that the same in-service accident that caused his service-connected right ankle and left knee disabilities also injured his left ankle and symptoms had persisted from then to the present. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. DeVerter, 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.