Citation Nr: 21015948 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 09-36 020 DATE: March 18, 2021 ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for a right elbow disorder, to include bursitis. For this issue only, the appeal is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right elbow disability, to include bursitis, is remanded. Entitlement to service connection for a foot disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT 1. The Veteran’s claim for service connection for a right elbow disability was denied in an October 2002 rating decision, because there was no evidence of residual disability. The Veteran did not appeal that rating decision or submit additional evidence within one year of the decision. The decision became final. 2. Evidence added to the record since the October 2002 rating decision relates to an unestablished fact that is necessary to substantiate the claim of entitlement to service connection for a right elbow disability. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a right elbow disability. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1974 until October 1978. In April 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been before the Board on several prior occasions. Most recently, in April 2020, the appeal was remanded to the agency of original jurisdiction (AOJ) for further development and readjudication including new VA medical opinions for the Veteran’s claimed low back, right elbow, acquired psychiatric, and foot disabilities. For the issues of entitlement to service connection for the Veteran’s right elbow, foot, low back, and acquired psychiatric disabilities, there has not been substantial compliance with the Board’s prior remand directives and another remand is now required. For the issue of whether new and material evidence has been received to reopen the claim for service connection for a right elbow disability, the Board finds there has been substantial compliance with its remand directives and will proceed to adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). New and material evidence has been submitted to reopen a claim of entitlement to service connection for a right elbow disorder, to include bursitis. The Veteran seeks to reopen a previously denied claim of service connection for a right elbow disability. The question before the Board is whether new and material evidence has been submitted since the previous final denial. The Board finds that new and material evidence has been received and will reopen the claim. The claim was initially denied in an October 2002 rating decision because the AOJ determined there was no “residual or chronic disability subject to service connection…shown by the service medical records or demonstrated by evidence following service.” The evidence considered at the time included the Veteran’s service treatment records (STRs). The Veteran did not appeal that decision or submit new and material evidence within one year of the decision, and the decision became final. The Veteran was provided a VA elbow and forearm examination in April 2017 which diagnosed degenerative arthritis of the right elbow. The April 2017 VA examination and resulting diagnosis of degenerative arthritis of the right elbow constitutes new and material evidence sufficient to reopen his service connection claim. The evidence is new, because it was not considered at the time of the prior decision denying service connection. The evidence is material because it relates to an unestablished fact necessary to substantiate the claim; an elbow disability is diagnosed. Accordingly, the Board finds that new and material evidence sufficient to reopen service connection for a right elbow disability, to include bursitis, has been received and the claim is reopened. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Board cannot make a fully informed decision on the issue of entitlement to service connection for a low back disability because the VA medical opinion obtained in July 2020 is inadequate. The examiner provided a negative nexus opinion; however, as rationale, the examiner stated that the first report of back pain after service was not until early 2000. It does not appear the opinion provider considered the Veteran’s sworn testimony that he had been treated for back pain since service and that he did not start getting consistent treatment until he was employed. It also does not appear to consider a report by the Veteran in October 2011 while receiving VA treatment that he has experienced “chronic low back pain for 20 years.” A medical opinion that does not consider all evidence of record, including the Veteran’s lay statements is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). On remand, an addendum medical opinion that considers all evidence of record, including the Veteran’s lay statements, must be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for a right elbow disability, to include bursitis, is remanded. The Board cannot make a fully informed decision on the Veteran’s claim seeking service connection for a right elbow disability, because no medical nexus opinion has been obtained. The Veteran seeks service connection for a right elbow disability, to include bursitis. The April 2017 VA examination diagnosed degenerative arthritis in the right elbow. The Veteran’s service treatment records show complaints of swelling in the right elbow following a football injury that lasted two weeks, an April 1977 diagnosis of bursitis and an October 1977 finding of inflammation. The claim is remanded for a medical opinion. 38 C.F.R. § 3.159 (c)(4). 3. Entitlement to service connection for a foot disorder is remanded. The claim must be remanded because the medical opinion obtained subsequent to the Board’s April 2020 remand is inadequate. The basis of the negative opinion was an absence of a contemporaneous records of complaints or treatment as affirmative negative evidence. The examiner also failed to consider the Veteran’s sworn testimony that he experienced foot pain and swelling and that it has bothered him since service. 4. Entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD is remanded. The claim must be remanded again because the June 2020 medical opinion June 2020 is inadequate. The examiner diagnosed major depressive disorder, recurrent, with psychotic features and anxious distress as well as other specified trauma and stressor related disorder (subthreshold PTSD). The examiner then provided an opinion for the unspecified trauma and stressor related disorder (subthreshold PTSD), but did not include any rationale. Additionally, although specifically instructed to do so, the examiner failed to provide a nexus opinion for any other acquired psychiatric disorder, including the major depressive disorder they diagnosed. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2020 to the present. 2. After completion of (1), obtain an addendum opinion from an appropriate clinician regarding the nature and likely etiology of the Veteran’s low back disability. All pertinent documents should be provided to the opinion provider, including a copy of this remand. If the opinion provider determines a requested opinion cannot be provided without examination of the Veteran, one should be scheduled. After a review of the record and any additional examination, testing, or study deemed necessary, the clinician is asked to answer the following: (a.) Is it at least as likely as not (50 percent or greater probability) the Veteran’s low back disability is related to his service? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed degenerative arthritis of the spine (i) began during active service, (ii) manifested within one year after discharge from service, or (iii) was noted during service with continuity of the same symptomatology since service? In answering both (a) and (b) above, the opinion provider should consider, and discuss as appropriate, the following: (i) the Veteran’s in-service report of back pain after swimming in December 1974, (ii) the Veteran’s in-service report of low back pain after playing basketball in August 1977, (iii) the Veteran’s October 1977 in-service report of pain in his back muscle with muscle spasms, (iv) a September 2002 private treatment note noting reports of low back pain after a motor vehicle accident, (v) the May 2010 and June 2010 letters from a private provider opining that the Veteran’s low back pain is related to treatment while in service, (vi) an October 2011 VA treatment note wherein the Veteran reported chronic low back pain for 20 years, and (vii) the Veteran’s sworn testimony that he has been treated for his back condition since service. All provided opinions must be supported by complete rationale. If the opinion provider determines a requested opinion cannot be provided without resort to speculation, they should say why. 3. After completion of (1), schedule the Veteran for a VA examination for his claimed right elbow condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a.) Is the Veteran’s right elbow disability, to include degenerative arthritis, at least as likely as not (50 percent or greater probability) related to service? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed degenerative arthritis of right elbow (i) began during active service, (ii) manifested within one year after discharge from service, or (iii) was noted during service with continuity of the same symptomatology since service? In answering (a) and (b) above, the opinion provider must consider, and discuss as appropriate, the following: (i) in-service injury to the right elbow with swelling while playing football in September 1976 diagnosed as bursitis, (ii) in-service inflammation of the right elbow noted in March 1977, and (iii) complaint of right arm pain following a motor vehicle crash in September 2002. All provided opinions must be supported by complete rationale. If the opinion provider determines a requested opinion cannot be provided without resort to speculation, they should say why. 4. After completion of (1), obtain an addendum opinion from an appropriate clinician regarding the nature and likely etiology of the any diagnosed foot disability. All pertinent documents should be provided to the opinion provider, including a copy of this remand. If the opinion provider determines a requested opinion cannot be provided without examination of the Veteran, one should be scheduled. After a review of the record and any additional examination, testing, or study deemed necessary, the clinician is asked to answer the following: (a.) Identity all diagnosed foot disorders since November 2009, to include bilateral pes planus, bilateral plantar fasciitis, and bilateral arthritic conditions. (b.) For each diagnosed foot disability, is it at least as likely as not (50 percent or greater probability) the Veteran’s low back disability is related to his service? (c.) If arthritis is diagnosed, is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed arthritis of the foot (i) began during active service, (ii) manifested within one year after discharge from service, or (iii) was noted during service with continuity of the same symptomatology since service? In answering both (a), (b), and (c) above, the opinion provider should consider, and discuss as appropriate, the Veteran’s sworn testimony that he began experiencing foot pain and swelling in service and that it has continued since that time. All provided opinions must be supported by complete rationale. If the opinion provider determines a requested opinion cannot be provided without resort to speculation, they should say why. 5. After completion of (1), obtain a VA medical opinion from an appropriate clinician to determine the etiology of any diagnosed acquired psychiatric disorders. Copies of all pertinent records, including a copy of this remand, must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. Based on the review of the record and examination, if necessary, the examiner should answer the following: (a) Identify all acquired psychiatric disorders diagnosed since March 2007, to include depressive disorder, general anxiety disorder, and other specified trauma and stressor related disorder (subthreshold PTSD). The examiner should specifically identify whether PTSD has been diagnosed under the DSM-IV or DSM-5 criteria at any point since March 2007. (b) If a diagnosis of PTSD under the DSM-IV or DSM-5 has been made during the period of appeal, the examiner should identify if it is related to his verified stressor of witnessing a fellow sailor stab someone. (c) For any acquired psychiatric disorder other than PTSD diagnosed during the period of the claim, is it at least as likely as not (50 percent or greater probability) that acquired psychiatric disorder is related to the Veteran’s active duty service, including but not limited to as due to his verified stressor event? All provided opinions must be supported by complete rationale. If the opinion provider determines a requested opinion cannot be provided without resort to speculation, they should say why. ` M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Collins, 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.