Citation Nr: 21011771 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 13-27 533 DATE: March 2, 2021 REMANDED Entitlement to accrued benefits based on a pending claim for service connection for a left foot disability is remanded. Entitlement to accrued benefits based on a pending claim for service connection for a left ankle disability is remanded. Entitlement to accrued benefits based on a pending claim for service connection for a right knee disability is remanded. Entitlement to accrued benefits based on a pending claim for service connection for hypertension is remanded. Entitlement to accrued benefits based on a pending claim for service connection for an acquired psychiatric disorder is remanded. INTRODUCTION The Veteran served on active duty from March 1971 to October 1971. He died in April 2019; the Appellant is his surviving spouse and has been substituted as the claimant in these matters. In August 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. When this case was most recently before the Board in September 2017, the above-noted claims were remanded for additional development. The case has since been returned for additional appellate review. REASONS FOR REMAND While further delay of this appeal is quite regrettable, the Board finds additional development is yet again required before the above-noted claims are decided. As previously noted in the September 2017 remand, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With respect to the claims for service connection for a left foot, left ankle, and right knee disabilities, as well as hypertension, the Board finds addendum medical opinions are necessary. In particular, the Board notes the RO obtained medical opinions in December 2020 addressing the Veteran’s claims. However, the examiner failed to acknowledge and discuss critical evidence. Specifically, in the September 2017 remand, the Board noted the Veteran’s reports of being given salt pills in service. He was competent to report this event. In her December 2020 medical opinion, the examiner concluded the Veteran’s hypertension was less likely than not incurred in service. In support of this conclusion, the examiner indicated the Veteran’s service treatment records (STRs) were negative for a diagnosis of hypertension; however, the examiner wholly failed to acknowledge or discuss whether the Veteran’s consumption of salt pills in service may have caused his hypertension. Additionally, in the September 2017 remand, the Board also noted a September 1971 STR note, which indicated the Veteran fell on his right knee. During his August 2016 Board hearing the Veteran reported his knee continued to bother him. He stated he experienced ongoing effusion, pain, and weakness since that time. The December 2020 examiner concluded the Veteran’s right knee disability was less likely than not incurred in service. In support of this conclusions she stated the Veteran’s STRs were negative for any knee complaints, injuries, or treatment. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Next, the Board notes the December 2020 VA examiner also concluded the Veteran’s claimed left foot and ankle disabilities were less likely than not incurred in service. However, the Veteran reported ongoing foot and ankle pain following his surgery in service. A review of his STRs indicates he underwent surgery to remove ganglion cysts in service in July 1971 and continued to report ongoing pain in his foot two months later in September 1971. During his August 2016 hearing the Veteran indicated he continued to experience ongoing foot and ankle pain after his surgery, and that his Podiatrist had informed him his ongoing foot/ankle problems may have been the result of his residual manifestations following his in-service surgery. The December 2020 VA examiner found no evidence of any “residuals” following the Veteran’s surgery in service; however, the Veteran’s STRs clearly show ongoing foot pain following his surgery. The examiner also appears to have ignored the Veteran’s competent reports of foot/ankle pain. Examiners simply are not free to ignore a veteran’s statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Based on the foregoing deficiencies, the Board finds addendum medical opinions must be obtained. Finally, the Board also finds the medical opinion provided in November 2020 by a VA Psychologist to be deficient, as the examiner applied an incorrect legal standard, and also failed to address all of the Veteran’s diagnosed psychiatric disorders. As previously noted, the Veteran underwent a medical board evaluation in October 1971. At that time, he was diagnosed with schizophrenic reaction, paranoid type. During his March 1971 entrance examination, he was found psychiatrically normal on entry into active duty. As such, the presumption of soundness attaches to this case, because the Veteran’s STRs do not note the presence of a psychiatric disability at entrance into active duty. To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In the September 2017 remand, the Board explained the burden is on VA to demonstrate by clear and unmistakable evidence that the disability was not aggravated during the Veteran’s active duty service. See VAOPGCPREC 3-2003. The Board also noted the Veteran’s Orlando VAMC treatment reports indicated he had also been diagnosed with anxiety and depression. The RO obtained a VA medical opinion from a Psychologist in November 2020. The examiner concluded the Veteran’s schizophrenia, 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 support of her conclusion, the examiner stated “aggravation is a permanent worsening of a pre-existing condition.” However, the Board notes that pursuant to 38 C.F.R. § 3.306 a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service. In this case, the examiner appears to have applied a higher standard of permanent increase than is required by law. Further, the examiner wholly failed to consider or discuss the relevant facts indicating the Veteran experienced a suicidal event in service, as well as his testimony during his August 2016 hearing, wherein he indicated he had not ever experienced suicidal ideations prior to service. In addition, the examiner failed to discuss or consider the Veteran’s other diagnoses, which included major depressive disorder and anxiety disorder. In this respect, the examiner stated a compensation and pension examination would be required to determine whether the criteria for a mental disorder under the DSM-5 were met. However, the examiner did not state why she discounted the Axis-I diagnoses provided by competent mental health care providers at both the Orlando VAMC and Mindful Behavioral Healthcare. Based on these deficiencies, the Board finds an addendum medical opinion must also be obtained from the November 2020 VA examiner. Accordingly, this case is REMANDED for the following actions: 1. Obtain an addendum medical opinion from the VA examiner that provided the December 2020 medical opinions, if available, and if unavailable from an examiner with sufficient expertise to address the etiology of the Veteran’s claimed left foot/ankle, right knee, and hypertension disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed left foot/ankle disorder, to include hallux valgus, calcaneal spur, and exostoses of the first metatarsal bone, at least as likely as not (a 50 percent probability or greater): a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected post-operative ganglion cyst removal; or c) was worsened to any degree by his service-connected post-operative ganglion cyst removal. Additionally, the examiner(s) should state whether any diagnosed right knee or hypertension disability at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service. The examiner(s) must consider and discuss the Veteran’s September 1971 right knee injury, as well as the Veteran’s reports of ongoing knee manifestations since that time. The examiner must also expressly discuss the Veteran’s competent reports of being administered salt pills in service. Additionally, the examiner must also consider and specifically discuss the Veteran’s reports of ongoing foot and ankle pain following his July 1971 surgery, as well as the September 1971 treatment note confirming his ongoing manifestations following surgery. The examiner(s) must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Also obtain an addendum medical opinion from the VA examiner that provided the November 2020 medical opinions, if available, and if unavailable from an examiner with sufficient expertise to address the etiology of the Veteran’s claimed psychiatric disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner should answer the following questions with respect to each psychiatric disorder present during the period of the claim, to specifically include schizophrenia, anxiety, and depression. a) is there a 50 percent or better probability that the Veteran’s current psychiatric disorder was present in service; b) did any diagnosed psychiatric disorder clearly and unmistakably pre-exist the Veteran’s entry into active service; and c) if so, did the disorder clearly and unmistakably undergo no increase in severity during active duty service? The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran’s competent and credible reports relative to his psychiatric manifestations. If the examiner finds the Veteran’s disability clearly and unmistakably existed but was not aggravated during active service (i.e. underwent no increase), the examiner should state the specific evidence used in forming this opinion. The examiner is asked to consider and discuss the other competent diagnoses provided by the Veteran’s mental health care providers at both the Orlando VAMC and Mindful Behavioral Healthcare, to include anxiety and depression. If the examiner finds those diagnoses are not valid, the examiner should fully explain how they came to such a conclusion. (Continued on the next page)   If the examiner is unable to provide any requested opinions, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.