Citation Nr: 21015706 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-28 493 DATE: March 18, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1979 to February 1981. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2011 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama. The Board remanded the claims in February 2018 and in August 2019. The Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge in July 2017. A transcript of the hearing is associated with the claims file. 1. & 2. The claims for entitlement to service connection for a left knee disability and for a right knee disability are remanded. Per the February 2018 Board remand, the Board remanded the claims for addendum opinions, which were obtained in January 24, 2020 from the same November 2018 VA examiner who provided the initial inadequate etiology opinions. The VA examiner again provided negative nexus opinions for both knees. However, again, the Board finds that the stated rationale shows that the examiner based the conclusions largely, and improperly, on the Veteran’s records being silent for any knee pain after 1980 until 2009. Moreover, the November 2018 Knee and Lower Leg Conditions Disability Benefits Questionnaire mentions that the Veteran was diagnosed with left knee chondromalacia in service but does not state whether he currently has the diagnosis still. It also does not list degenerative joint disease as a current diagnosis for either knee, when the medical records show the Veteran has bilateral knee degenerative joint disease. Based on the foregoing, although further delay is regrettable, the claims must be remanded for new examinations and new opinions from a new examiner. 3. & 4. The claims for entitlement to service connection for a left shoulder disability and for an acquired psychiatric disorder are remanded. Similarly, per the February 2018 Board remand, the Board remanded the left shoulder disability and an acquired psychiatric disorder claims for addendum opinions, which were obtained in January 24, 2020 and in November 2020, respectively. The VA examiners provided negative nexus opinions, and again, the Board finds that the stated rationales show that the examiners based their conclusions largely, and improperly, on the Veteran’s records being silent for any symptoms. Therefore, the claims must be remanded for new opinions from new examiners. The matters are REMANDED for the following action: 1. Schedule the Veteran for another VA examination, with a different examiner, to determine the nature, extent, and etiology of any currently manifested disability in the knees. (a) The examiner must list and address each and every current disability, including degenerative joint disease. (b) In this regard, the Board points out that any valid diagnosis shortly prior to the filing of the claim (June 27, 2011), or during the pendency of the claim may constitute a current disability for purposes of service connection, even if resolved at the time of adjudication. See McClain v. Nicholson, 21 Vet. App. 319 (2007). (c) The examiner must also specifically address whether the Veteran has a current diagnosis of chondromalacia in either knee. The Veteran’s claims file must be provided to the examiner for review. All appropriate testing should be performed. After examining the Veteran and reviewing the entire record, the examiner should provide an opinion responding to the following questions: FOR THE LEFT KNEE ONLY (a) FOR EACH AND EVERY CURRENT DIAGNOSIS, is it at least as likely as not (50% or higher degree of probability) that the Veteran’s current left knee disability, had its onset in service or is otherwise related to his active service, to include his in-service left knee chondromalacia. (b) The examiner should o address the November 2014 VA medical report from Dr. E. Tofil, who indicated that the Veteran’s current mild to moderate degenerative narrowing in the knee “could be related to prior Osgood-Schlatter disease.” (c) The examiner should further address the Veteran’s lay statements, including those made at the July 2017 Board video conference hearing. The Veteran has said that when he was in basic training, his knees would lock up and running would cause him excruciating pain. He was on bedrest and diagnosed with chondromalacia in both of his knees in service. The knee pain continued even after he left service and he would self-medicate for it. He did not seek treatment at a VA medical center until later. • The examiner must be instructed that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. The examiner must address and consider on the Veteran’s report of in-service injury, symptomatology, and its onset and duration, despite any absence of evidence in the Veteran’s medical records. • The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. FOR THE RIGHT KNEE ONLY (a) Is there evidence demonstrating that the Veteran’s pre-existing right knee chondromalacia was aggravated during/by his military service? (b) If so, is there clear and unmistakable evidence that the aggravation of the preexisting right knee chondromalacia is due to the natural progression of the disease? (c) If the aggravation is NOT due to the natural progression of the disease, is the Veteran’s current disability of the right knee related to the aggravation. The examiner should further address the Veteran’s lay statements: (a) including those made at the July 2017 Board video conference hearing. The Veteran has said that when he was in basic training, his knees would lock up and running would cause him excruciating pain. He was on bedrest and diagnosed with chondromalacia in both of his knees in service. The knee pain continued even after he left service and he would self-medicate for it. He did not seek treatment at a VA medical center until later. • The examiner must be instructed that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. The examiner must address and consider on the Veteran’s report of in-service injury, symptomatology, and its onset and duration, despite any absence of evidence in the Veteran’s medical records. The examiner should also address: (a) the November 2014 VA medical report from Dr. E. Tofil, who indicated that the Veteran’s current mild to moderate degenerative narrowing in the knee “could be related to prior Osgood-Schlatter disease.” (b) If the disability has increased in severity beyond the natural progress of the disease, is the Veteran’s current right knee disability as least as likely as not related to that increase, which is beyond the natural progress of the disease? 2. Obtain an additional opinion by a new VA examiner as to the etiology of the left shoulder disability. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Following a review of the claims file, the reviewing examiner is requested to provide an opinion responding to the following question: (a) Is it at least as likely as not (50% or higher degree of probability) that the Veteran’s current left shoulder disability had its onset in service or is otherwise related to his active service, to include his in-service left shoulder treatment for the scapular muscle? (b) The examiner should further address the Veteran’s lay statements, including those made at the July 2017 Board video conference hearing. i. The Veteran has asserted that during basic training, he was carrying TA-50s in his backpack that weighed 60 pounds, throwing grenades, and doing strenuous, rigorous things, that he ended up hurting his left shoulder. He was prescribed heating pads during service and says that his shoulder has never been the same since. • The examiner must be instructed that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. The examiner must address and consider on the Veteran’s report of in-service injury, symptomatology, and its onset and duration, despite any absence of evidence in the Veteran’s medical records. • The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. 3. Obtain an additional opinion by an appropriate examiner as to the etiology of the acquired psychiatric disability. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Following a review of the claims file, the reviewing examiner is requested to provide an opinion responding to the following question: After reviewing the claims folder and examining the Veteran, for any current diagnosis of an acquired psychiatric disability, the examiner is specifically instructed to provide the following information: (a) Is it "at least as likely as not (50 percent probability or greater)" that any acquired psychiatric disorder diagnosis BEGAN IN or is related to his time in the service, yes or no? (b) Is it "at least as likely as not (50 percent probability or greater)" that any acquired psychiatric disorder diagnosis was CAUSED BY either of his knee disabilities, left shoulder disability, or a service-connected disability, yes or no? (c) Is it "at least as likely as not (50 percent probability or greater)" that any arm disability underwent any incremental increase in disability, regardless of its permanence, due to either of his knee disabilities, left shoulder disability, or a service-connected disability, no? (d) The examiner should further address the Veteran’s lay statements, including those made at the July 2017 Board video conference hearing. i. The Veteran has said that his anxiety began in service. He was very stressed out because of his knee, shoulder, and other conditions and “felt like his body was breaking down.” He was trying to self-medicate himself for the physical pain with alcohol. • The examiner must be instructed that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. The examiner must address and consider on the Veteran’s report of in-service injury, symptomatology, and its onset and duration, despite any absence of evidence in the Veteran’s medical records. • The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. • The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 4. FOR ALL OPINIONS, the RO should ensure that a rationale is provided, to include specific discussion of the medical principles involved and the relevant facts. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) Any opinion expressed by the VA examiner should be accompanied by a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. 5. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.