Citation Nr: 21007014 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-23 119 DATE: February 8, 2021 REMANDED 1. Entitlement to service connection for a bilateral knee disorder, to include as secondary to service-connected residuals of stress fracture of the left second metatarsal with degenerative joint disease (DJD) (left foot disability), and DJD of the left ankle (left ankle disability), is remanded. 2. Entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD), to include as secondary to service-connected left foot and left ankle disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1990 to September 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an October 2016 hearing. These issues were previously before the Board in August 2018 and May 2020, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. 1. Entitlement to service connection for a psychiatric disorder to include PTSD, to include as secondary to service-connected left foot and left ankle disabilities, is remanded. 2. Entitlement to service connection for a bilateral knee disorder, to include as secondary to service-connected left foot disability, and left ankle disability, is remanded. Remand is required for substantial compliance with the May 2020 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The May 2020 Board remand instructed the RO to obtain and associate with the claims file any outstanding private treatment records (PTRs), and to obtain new VA medical opinions. The RO sent a June 2020 letter to the Veteran asking that he identify and authorize for release any outstanding PTRs. The Veteran did not reply to this letter. First, for the claim of entitlement to service connection for a psychiatric disorder, remand is required for a new VA examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When a veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Veteran underwent a new VA examination in September 2020 where the examiner provided diagnoses of unspecified anxiety and unspecified attention deficit hyperactivity disorder (ADHD), but not PTSD. Regarding the PTSD, the examiner noted two claimed stressors, which did not meet the criteria for a diagnosis of PTSD. The first was the Veteran’s assertions that he was subject to hazing while in boot camp, to include being crushed under a pile of men, being forced to drink too much water, and being punched by a superior. The second was the Veteran’s assertions that he was traumatized over being told that he could not remain in the military due to either cutbacks or injuries. As the examiner found no diagnosis for PTSD, they provided negative nexus opinions on a direct basis, and secondary to service-connected left ankle and left foot disabilities. Regarding the unspecified anxiety, the examiner provided a negative nexus opinion on a direct basis. The examiner noted that the Veteran received counseling for anxiety in 2012 and 2013, but explained that there was no evidence to indicate that the anxiety symptoms are due to service, to include the Veteran’s assertions of hazing or his dismissal. However, the examiner provided no other supporting rationale. The examiner also provided a negative nexus opinion for secondary service connection due to the left foot and left ankle disabilities. As for causation, the examiner opined that the symptoms of anxiety have been about other issues, such as difficulty fitting in at work, job stability, housing stability, and the future. As for aggravation, the examiner explained that there is no aggravation of anxiety due to the left foot or left ankle disabilities, because his own statements do not support that the anxiety is about the foot or ankle. However, the corresponding PTSD disability benefits questionnaire does not indicate that the examiner even asked the Veteran about his left foot and left ankle disabilities. Indeed, the examiner provided a detailed analysis of the Veteran’s relevant social, marital, family, occupational, educational, mental health, legal, behavioral, and substance abuse histories, but the only mention of the left foot and left ankle disabilities is in the evidence review quoting the January 2020 VA medical opinion. Regarding the ADHD, the examiner provided a negative nexus opinion on a direct basis, explaining that the Veteran reported he was diagnosed before service as an child, and that ADHD is a developmental organic disorder that is not caused by a event, and that there is no evidence to show that it was incurred by service. The examiner also provided a negative nexus opinion for secondary service connection due to the left foot and left ankle disabilities. As for causation, the examiner explained that ADHD is a brain based organic condition that is developmental in nature, and is not caused by an event or another condition. As for aggravation, the examiner explained that the ADHD was not aggravated by past events, but provided no further supporting rationale. The May 2020 Board remand instructed the examiner to address the following: 1) the Veteran’s asserted stressors, 2) the PTRs that show psychiatric treatment began in 1992; 3) the July 2013 private diagnosis of PTSD; and 4) the buddy statements regarding the Veteran’s change in behavior after separation from service. Although the examiner did address the stressors as part of the PTSD analysis, they failed to address any of these other records. Further, the Veteran has received other diagnoses during the appeal period that were not addressed by this examiner. June 2015 VA treatment records indicate that the Veteran has moderate depression. September 2019 PTRs indicate diagnoses of bipolar personality disorder, and possible TBI, in addition to the aforementioned depression, and PTSD. The January 2020 VA examination provided a diagnosis of unspecified personality disorder, in addition to unspecified ADHD. The requirement for service connection that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). These prior diagnoses should be addressed. Accordingly, remand is required for a new VA examination. Second, for the claim of entitlement to service connection for a bilateral knee disorder, remand is required for an addendum VA medical opinion. The Veteran underwent a new VA examination in October 2020 where the examiner provided a diagnosis of bilateral knee strain. The May 2020 Board remand instructed the examiner to address whether there were any meniscal conditions. On the corresponding disability benefits questionnaire, the examiner endorsed no meniscal conditions. The examiner was also instructed to address whether the bilateral knee disorder causes functional impairment of earning capacity. Upon examination, the examiner found that the Veteran can do all upper and lower extremity movements safely within an 8 hour work day, and that he can lift 50 pounds, but that he must change position every 1 to 2 hours as needed. On a direct basis, the examiner provided a negative nexus opinion, stating that there are no medical records from active duty indicating any complaints of knee problems, and therefore it is not related to service. The examiner failed to provide any other supporting rationale. The examiner also provided a negative nexus opinion for secondary service connection due to the left foot and left ankle disabilities. The examiner stated that because there are no medical records from service indicating any knee problems, and there are no medical records indicating that the current left ankle and left foot disabilities caused or aggravated the right knee condition, then it is less likely than not that the left foot and left ankle disabilities caused or aggravated the left knee condition. The Board finds this rationale to be circular and lacking. Essentially, the examiner is stating that because there is no evidence that the left foot and left ankle disabilities caused or aggravated the right knee disorder, then the left foot and left ankle disabilities could not have caused or aggravated the left knee disorder. Further, the examiner provided no other supporting rationale. The examiner also failed to address the July 2013 buddy statements, or the October 2016 Board hearing testimony. Accordingly, remand is required for an addendum VA medical opinion. While on remand, the RO should make another attempt to obtain any outstanding PTRs. As noted above, the Veteran did not reply to the June 2020 request for these records. The duty to assist a claimant is not a one-way street, and in the instant case, the Veteran must cooperate by responding to the RO’s request for authorization to request records to the full extent in the development of the claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (noting that VA’s duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where their assistance to VA is necessary). As these issues are already being remanded, the RO should provide the Veteran with another opportunity to cooperate with the development of his claims. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his psychiatric disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a) First, the examiner must determine all of the Veteran’s diagnosed psychiatric disorders. The examiner must specifically determine if PTSD, depression, anxiety, ADHD, TBI, unspecified personality disorder, and/or bipolar personality disorder are present. If not found, the examiner must address the prior diagnoses during the appeal period. The examiner is reminded that the requirement for service connection that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. (b) Second, for each diagnosed psychiatric disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder has onset in, or is otherwise related to, active military service, to include the Veteran’s alleged in-service stressors. (c) Third, for each diagnosed psychiatric disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder is caused by the service-connected left foot disability. (d) Fourth, for each diagnosed psychiatric disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder is aggravated by the service-connected left foot disability. (e) Fifth, for each diagnosed psychiatric disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder is caused by the service-connected left ankle disability. (f) Sixth, for each diagnosed psychiatric disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder is aggravated by the service-connected left ankle disability. (g) Seventh, the examiner must address the following: 1) the Veteran’s assertions of in-service hazing, and of his disappointment in being unable to complete his service in the Marines; 2) the March 2008 PTR indicating that the Veteran sought treatment in 1992 after discharge; 3) the July 2013 private diagnosis of PTSD; 4) July 2013 buddy statements; 5) the October 2016 Board hearing testimony; 6) the September 2019 PTRs providing additional psychiatric diagnoses; 7) June 2015 VA treatment records indicating moderate depression; and 8) the June 2015, January 2020, and September 2020 VA examinations. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the bilateral knee disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral knee disorder had onset in, or is otherwise related to, active service. (b) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral knee disorder is caused by the service-connected left ankle disability. (c) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral knee disorder is aggravated by the service-connected left ankle disability. (d) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral knee disorder is caused by the service-connected left foot disability. (e) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral knee disorder is aggravated by the service-connected left foot disability. (f) The examiner must address the following: 1) the July 2013 buddy statements; 2) the October 2016 Board hearing testimony; 3) and the January 2020 and October 2020 VA examinations. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.