Citation Nr: 21006717 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 13-33 476 DATE: February 5, 2021 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from August 2005 to December 2005, from August 2006 to December 2007, and from January 2010 to October 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in July 2014. This case was previously before the Board in May 2015 and April 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. The prior Board remand directed the RO to obtain opinions regarding whether any current right shoulder or knee disabilities are related to the Veteran’s military service, either on a direct basis or as a medically unexplained chronic multisymptom illness. The RO scheduled shoulder and knee examinations for the Veteran in July 2020, at which the examiner identified diagnoses of chronic right shoulder strain and chronic right knee strain. The examiner opined that, although the Veteran reported chronic pain in the shoulder and knee since service, there was not enough documentation of medical care since the initial injuries to establish chronicity of care. The examiner opined that, as there was no objective evidence in the record of shoulder and knee pain since service, a nexus cannot be established between the initial injuries in service and the current chronic knee and shoulder strains. In other words, the examiner appears to have impermissibly dismissed the Veteran’s reports of continuous shoulder and knee problems solely because these complaints were not documented in medical treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). The examiner was then directed to discuss both the etiology and pathophysiology of the condition to which the Veteran’s reported symptoms were attributed, but the examiner failed to do so for both the chronic right shoulder strain and the chronic right knee strain. Rather, the examiner reiterated the direct service connection opinions for both the shoulder and knee disabilities. In relying on these July 2020 examinations, the RO again failed to fulfill the directives of the Board’s remand, and another remand is necessary to obtain adequate opinions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order). The matters are REMANDED for the following action: Schedule the Veteran for an examination with an appropriate clinician who has not previously examined the Veteran or provided an etiology opinion with respect to the right shoulder and right knee disabilities to determine whether any current right shoulder and/or right knee disabilities are related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should provide the following opinions: a) Are the reported shoulder symptoms attributable to a diagnosed right shoulder disability, to include, but not limited to, the right shoulder strain identified on the July 2020 examination? b) If the symptoms are attributable to a diagnosed condition, the examiner must then discuss both the etiology and pathophysiology of the condition to which the Veteran’s reported symptoms have been attributed, with emphasis on whether BOTH the etiology and pathophysiology of the condition is understood or at least partially understood in the context of the Veteran’s unique circumstances. c) If any of the claimed symptoms are attributable to a diagnosed condition with BOTH an etiology and pathophysiology that are at least partially understood in the context of the Veteran’s unique circumstances, the examiner must then address whether the condition is at least as likely as not (50 percent probability or greater) the result of disease or injury in active service. d) The examiner should be instructed that pain may be considered a disability where it causes functional impairment, even in the absence of an underlying diagnosis. Thus, IF there is no diagnosis of a right shoulder disability, the examiner must indicate whether the Veteran’s current right shoulder pain causes functional impairment. If so, then the examiner must opine whether the shoulder pain that causes functional impairment is at least as likely as not related to his military service. (The examiner need not provide this opinion if a diagnosis has been identified, and the etiology and pathophysiology have been discussed.) e) Are the reported knee symptoms attributable to a diagnosed right knee disability, to include, but not limited to, the right knee strain identified on the July 2020 examination? If the symptoms are attributable to a diagnosed condition, the examiner must then discuss both the etiology and pathophysiology of the diagnosed condition, with emphasis on whether BOTH the etiology and pathophysiology of the condition is at least partially understood in the context of the Veteran’s unique circumstances. If both the etiology and pathophysiology of the condition are not at least partially understood in the Veteran’s case, then the condition may be a MUCMI. A MUCMI is a medically unexplained chronic multi-symptom illness which is defined as a diagnosed illness without conclusive pathophysiology or cause that is characterized by overlapping signs and symptoms and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. f) If any of the claimed symptoms are attributable to a diagnosed condition with BOTH an etiology and pathophysiology that are at least partially understood in the context of the Veteran’s unique circumstances, the examiner must then address whether the condition is at least as likely as not (50 percent probability or greater) the result of disease or injury in active service. g) The examiner should be instructed that pain may be considered a disability where it causes functional impairment, even in the absence of an underlying diagnosis. Thus, IF there is no diagnosis of a right knee disability, the examiner must indicate whether the Veteran’s current right knee pain causes functional impairment. If so, then the examiner must opine whether the knee pain that causes functional impairment is at least as likely as not related to his military service. (The examiner need not provide this opinion if a diagnosis has been identified, and the etiology and pathophysiology have been discussed.) In providing the requested opinions, the examiner should elicit and address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner may not dismiss the Veteran’s lay statements regarding continuity of symptomatology solely on the basis that they are not corroborated by contemporaneous treatment records. The examiner should address any other pertinent evidence of record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.