Citation Nr: 21008887 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 10-35 249 DATE: February 18, 2021 REMANDED 1. Entitlement to service connection for a bilateral elbow disorder, to include cubital tunnel syndrome, olecranon bursitis, and lateral epicondylitis, to include a temporary total rating for right and left cubital tunnel release, to include as secondary to the service-connected left hand disorder, is remanded. 2. Entitlement to service connection for a right hip disorder, to include osteoarthritis, to include as secondary to the service-connected right and left ankle disabilities, is remanded. 3. Entitlement to service connection for bilateral foot disorder, to include plantar fasciitis, metatarsophalangeal (MTP) contusion, degenerative changes of MTP and interphalangeal joint, pes planus, sesamoiditis, and hallux valgus, to include as secondary to the service-connected right and left ankle disabilities, is remanded. REASONS FOR REMAND The Veteran had active service with the United States Army from August 1984 to June 1987 and with the United States Marine Corps from November 1988 to September 1990. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Offices (RO). In July 2016, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. The Board notes that the Veteran revoked his representation in correspondence dated September 2017. In this regard, a power of attorney may be revoked at any time, and an agent or attorney may be discharged at any time. 38 C.F.R. § 14.631 (f)(1). In this case, the Veteran has clearly revoked his power of attorney and has not selected another representative to date. Accordingly, he is unrepresented in the present appeal before the Board. The Board previously remanded these issues in February 2017 and November 2018. 1. Entitlement to service connection for a bilateral elbow disorder, to include cubital tunnel syndrome, olecranon bursitis, and lateral epicondylitis, to include a temporary total rating for right and left cubital tunnel release, to include as secondary to the service-connected left hand disorder, is remanded. The Board’s November 2018 remand determined that a new VA examination and new nexus opinions regarding the Veteran’s bilateral elbow disorder were warranted. The examiner was directed to provide opinions for both direct service connection and secondary service connection, including aggravation. The Veteran was afforded a VA examination in December 2019. The examiner determined that the Veteran did not have a diagnosis of a bilateral elbow condition and neglected to provide any nexus opinions. This determination is inconsistent with the previous diagnoses of bilateral cubital tunnel syndrome, lateral epicondylitis, and left olecranon bursitis. Regardless of what the December 2019 examiner observed during the examination, the Veteran had established diagnoses of and treatment for multiple elbow conditions during the appeal period. As noted in the November 2018 remand, the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, the Board finds that another remand is necessary in order to obtain the opinions requested in the prior remand. Thus, on remand, the RO must afford the Veteran with a new examination for his bilateral elbow disability. The examiner is asked to complete a comprehensive examination and to provide separate nexus opinions regarding both direct and secondary service connection, with accompanying rationales, for each individual elbow diagnosis as requested in the directives below. 2. Entitlement to service connection for a right hip disorder, to include osteoarthritis, to include as secondary to the service-connected right and left ankle disabilities, is remanded. The Board’s November 2018 remand determined that a new VA examination and new nexus opinions regarding the right hip disorder were warranted. The examiner was asked to provide opinions for both direct service connection and secondary service connection, including aggravation. The Veteran was afforded a VA examination in December 2019. Regarding secondary service connection, the examiner simply concluded that “an ankle disorder would not cause a hip disorder,” as they were two separate parts of the body. He did not provide any further scientific reasoning or medical explanation in support of this statement. Furthermore, he failed to provide any rationale in support of the negative opinion regarding aggravation. In October 2020, a second examiner provided an addendum opinion regarding the right hip disability. However, the rationale for secondary service connection, including aggravation, was identical to the rationale provided for direct service connection, attributing the hip condition to general “wear and tear.” The examiner did not specifically address the Veteran’s contentions regarding these two different theories of entitlement, nor did she explain whether the “wear and tear” could have been aggravated by the service-connected ankle disabilities. Additionally, neither examiner addressed the May 2016 positive opinion, as was specifically directed in the November 2018 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the Board finds that another remand is necessary in order to obtain the opinions requested in the prior remand. The examiner is asked to provide separate nexus opinions, and accompanying rationales, regarding both direct and secondary service connection as requested in the directives below. 3. Entitlement to service connection for a bilateral foot disorder, to include plantar fasciitis, MTP contusion, degenerative changes of MTP and interphalangeal joint, pes planus, sesamoiditis, and hallux valgus, to include as secondary to the service-connected right and left ankle disabilities, is remanded. The Board’s November 2018 remand determined that a new VA examination and new nexus opinions regarding the bilateral foot disorder were warranted. The examiner was directed to provide opinions for both direct service connection and secondary service connection, including aggravation. The Veteran was afforded a VA examination in December 2019. However, the rationale for secondary service connection was identical to the rationale provided for direct service connection, attributing the bilateral foot condition to the Veteran’s post-service occupational history and ill-fitting shoes, with no supporting explanation. Furthermore, the examiner failed to provide any rationale in support of the negative opinion regarding aggravation. In October 2020, a second examiner provided an addendum opinion regarding the bilateral foot disability. However, the rationale for secondary service connection, including aggravation, was identical to the rationale provided for direct service connection, attributing the hip condition to ill-fitting shoes. The examiner did not specifically address the Veteran’s contentions regarding these two different theories of entitlement, nor did she explain whether the foot diagnoses could have been aggravated by the service-connected ankle disabilities. Additionally, neither examiner individually addressed the multiple foot diagnoses, as directed in the November 2018 remand. See Stegall, supra. Indeed, the December 2019 examiner addressed only the “foot condition,” while the October 2020 examiner briefly identified only pes planus and plantar fasciitis. These opinions failed to consider the prior diagnoses of the MTP contusion, degenerative changes of MTP and the interphalangeal joint, sesamoiditis, and hallux valgus. See McClain, supra. As such, the Board finds that another remand is necessary in order to obtain the opinions requested in the prior remand. The examiner is asked to provide separate nexus opinions, and accompanying rationales, regarding both direct and secondary service connection for each individual foot diagnosis, as requested in the directives below. The matters are REMANDED for the following action: 1. Obtain all outstanding non-duplicative VA treatment records 2. Schedule the Veteran for an appropriate VA examination with a clinician to determine the nature and etiology of his bilateral elbow disorder. The record should be made available and the examiner’s review of the record should be indicated. The examination report should include discussion of the Veteran’s documented medical history and assertions. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to identify all current right elbow and left elbow disorders. Records presently show this includes cubital tunnel syndrome, olecranon bursitis, and lateral epicondylitis. After reviewing the record and examining the Veteran, the examiner must offer an opinion for each question set out below for each diagnosed right and left elbow disorders of record, (these have included cubital tunnel syndrome, bursitis, and lateral epicondylitis), as well as any newly diagnosed conditions. The examiner is asked to provide individual opinions, with separate accompanying rationales, specifically addressing the theories of direct and secondary service connection, to include aggravation. Identical rationales for each opinion are unlikely to form a sufficient basis for a conclusion for VA benefits purposes. (a) Whether it is at least as likely as not (50 percent or higher degree of probability) that any diagnosed elbow disorder is related to the Veteran’s active service, to include his duties as an infantryman; (b) Whether it is at least as likely as not (50 percent or higher degree of probability) that any diagnosed elbow disorder is proximately due to, or caused by, the Veteran’s service-connected left hand disorder; (c) Whether it is at least as likely as not (50 percent or higher degree of probability) that any diagnosed elbow disorder has been aggravated by the Veteran’s service-connected left hand disorder. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. Although whether the service-connected left hand disability did or did not cause or aggravate the Veteran’s right or left elbow conditions may be obvious on the current record to one trained in medicine, it is necessary for purposes of VA benefits claims that a qualified person explain the matter to those untrained in medicine. To that end, the clinician is asked to provide a rationale and to explain the reasons behind each opinion expressed and conclusion reached. Mere conclusory statements or reiterations of a provided opinion cannot form a sufficient basis for a rationale for VA benefits purposes. In offering the opinions, the examiner is asked to consider the Veteran’s lay statements, his military occupational specialty, service treatment records, and post-service treatment records. 3. Obtain an addendum medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s right hip disorder. The need for a new examination is left to the discretion of the examiner offering the addendum opinion. The record should be made available and the examiner’s review of the record should be indicated. After reviewing the record, the examiner must offer an opinion for each question set out below regarding the Veteran’s diagnosed osteoarthritis of the right hip. The examiner is asked to provide individual opinions, with separate accompanying rationales, specifically addressing the theories of direct and secondary service connection, to include aggravation. Identical rationales for each opinion provided is unlikely to form a sufficient basis for a conclusion for VA benefits purposes. The examiner is also asked to address the May 2016 positive opinion. (a) Whether it is at least as likely as not (50 percent or higher degree of probability) that the right hip disorder is related to the Veteran’s active service, to include his duties as an infantryman; (b) Whether it is at least as likely as not (50 percent or higher degree of probability) that the right hip disorder is proximately due to, or caused by, the Veteran’s service-connected right or left ankle disabilities; (c) Whether it is at least as likely as not (50 percent or higher degree of probability) that the right hip disorder has been aggravated by the Veteran’s service-connected right or left ankle disabilities. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. Although whether the service-connected right and left ankle disabilities do or do not cause or aggravate the Veteran’s right hip disorder may be obvious on the current record to one trained in medicine, it is necessary for purposes of VA benefits claims that a qualified person explain the matter to those untrained in medicine. To that end, the clinician is asked to provide a rationale and to explain the reasons behind each opinion expressed and conclusion reached. Mere conclusory statements or reiterations of a provided opinion cannot form a sufficient basis for a rationale for VA benefits purposes. In offering the opinions, the examiner is asked to consider the Veteran’s lay statements, his military occupational specialty, service treatment records, and post-service treatment records. 4. Obtain an addendum medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral foot disability. The need for a new examination is left to the discretion of the examiner offering the addendum opinion. The record should be made available and the examiner’s review of the record should be indicated. After reviewing the record, the examiner must offer an opinion for each question set out below for each diagnosed right and left foot disorders of record, (these have included plantar fasciitis, MTP contusion, degenerative changes of the first MTP and interphalangeal joint, hallux valgus, pes planus, and sesamoiditis). The examiner is asked to provide individual opinions, with separate accompanying rationales, specifically addressing the theories of direct and secondary service connection, to include aggravation. Identical rationales for each opinion provided is unlikely to form a sufficient basis for a conclusion for VA benefits purposes. (a) Whether it is at least as likely as not (50 percent or higher degree of probability) that any diagnosed foot disorder is related to the Veteran’s active service, to include his duties/injuries as an infantryman; (b) Whether it is at least as likely as not (50 percent or higher degree of probability) that any diagnosed foot disorder is proximately due to, or caused by, the Veteran’s service-connected right or left ankle disabilities; (c) Whether it is at least as likely as not (50 percent or higher degree of probability) that any diagnosed foot disorder has been aggravated by the Veteran’s service-connected right or left ankle disabilities. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. Although whether the service-connected right and left ankle disabilities do or do not cause or aggravate the Veteran’s right or left foot disability may be obvious on the current record to one trained in medicine, it is necessary for purposes of VA benefits claims that a qualified person explain the matter to those untrained in medicine. To that end, the clinician is asked to provide a rationale and to explain the reasons behind each opinion expressed and conclusion reached. Mere conclusory statements or reiterations of a provided opinion cannot form a sufficient basis for a rationale for VA benefits purposes. In offering the opinions, the examiner is asked to consider the Veteran’s lay statements, his military occupational specialty, service treatment records, and post-service treatment records. 5. Thereafter, the remaining issues on appeal should be readjudicated. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Erin J. Trojanowski, 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.