Citation Nr: 21021101 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 14-20 292A DATE: April 9, 2021 REMANDED Entitlement to service connection for left shoulder degenerative joint disease (DJD) is remanded. Entitlement to service connection for right shoulder DJD is remanded. Entitlement to service connection for lumbar spine DJD is remanded. Entitlement to service connection for right knee DJD and meniscus tear is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1963 to November 1966. This appeal comes to the Board from a June 2012 rating decision. The Board remanded these matters in February 2016, February 2018, and February 2020 for additional development. 1. Entitlement to service connection for left shoulder, right shoulder, lumbar spine, and right knee disabilities is remanded. Pursuant to the prior remand instructions, VA obtained addendum opinions in September 2020. VA instructed the examiner to state whether it is at least as likely as not that the Veteran’s bilateral shoulder, lumbar spine, and right knee disabilities began in or are etiologically related to any incident of the Veteran’s military service, to include parachute jumping. See February 2020 Board Decision. VA instructed the examiner to consider the Veteran’s military personnel record, particularly his individual jump record and explain why, in the Veteran’s particular case, his current disabilities would be more likely due to age rather than the rigors of service, including parachute jumps. The objective is to address whether the in-service parachute jumps contributed in any way to the current diagnosis. VA also instructed the examiner to consider the statements from the Veteran regarding his history of symptoms, to include explaining why the Veteran’s statements make it more or less likely that a current condition started during service. The VA examiner was specifically instructed not to rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. Unfortunately, the opinions VA obtained are inadequate because the VA examiner stated generally what types of injuries occur with parachute jumps without relating this generality in any way to the Veteran. Further, the examiner concluded that the absence of medical records of any trauma/injury is medically significant because injuries or trauma to the shoulders, knees, and back from parachute jumping usually will cause acute or subacute (days or weeks) pain/or symptoms in lumbar spine. See September 2020 Shoulder Addendum Opinion; September 2020 Knee Addendum Opinion; September 2020 Back Addendum Opinion. To the extent that the Veteran’s medical records do not show treatment, failure to seek treatment is not considered negative evidence, unless treatment would have been required for that condition or injury. Kahuna v. Shinseki, 24 Veteran. App. 428 (2011). The Veteran’s representative has since argued symptoms of the Veteran’s conditions consist primarily of varying degrees of pain and discomfort. He notes these conditions do not meet the requirements for mandatory treatment or reporting in order to establish service connection. Id.; January 2021 Supplemental Remarks to Veteran’s Substantive Appeal. The representative further argued that it is as likely as not that the Veteran simply lived with the discomfort. See January 2021 Supplemental Remarks to Veteran’s Substantive Appeal. On remand, VA should obtain new opinions to address the deficiencies noted above. 2. Entitlement to service connection for hypertension is remanded. The Veteran is also seeking entitlement to service connection for hypertension, which he contends is either directly related to his service or secondary to his service-connected psychiatric disorder. VA obtained an addendum opinion in September 2020 as the Board directed in its remand order. VA instructed the examiner to provide an opinion as to whether the Veteran’s hypertension is at least as likely as not aggravated by his service-connected psychiatric disorder. See February 2020 Board Decision. The VA examiner opined that the Veteran’s hypertension is not proximately due to or the result of his psychiatric conditions and provided a rationale. The VA examiner further indicated that there was no objective medical evidence to support that the Veteran’s hypertension is aggravated by his service-connected psychiatric disorder based on a claims file review. The VA examiner did not use the correct legal standard and did not provide adequate rationale for this opinion. As such, additional opinion is warranted in order to comply with the terms of the Board’s prior remand instructions. Stegall, 11 Vet. App. 268. The Board notes that VA has found the Veteran entitled to service connection for coronary artery disease associated with his exposure to herbicides during the Vietnam War. See January 2012 rating decision. VA should obtain and associate a copy of the National Academies of Sciences, Engineering & Medicine’s (NAS) report, Veterans and Agent Orange: Update 2014 (10th Biennial Update 2016) (NAS Update 2014) and associate it with the claims file as the Board finds VA has constructive possession of this relevant document. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). VA should submit the report with the rest of the claims file to VA examiner for an opinion on whether it is at least as likely as not that the Veteran’s hypertension was caused by his exposure to herbicides, caused by his coronary artery disease, or aggravated by his coronary artery disease. The Board REMANDS for following actions: 1. VA should contact the Veteran and ask him to identify any outstanding relevant records to include service records and post-service records. VA should attempt to obtain the records and associate them with the file. 2. VA should obtain and associate a copy of the National Academies of Sciences, Engineering & Medicine’s (NAS) report, Veterans and Agent Orange: Update 2014 (10th Biennial Update 2016) (NAS Update 2014) with the claims file as the Board finds VA has constructive possession of this document. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). 3. After adding the outstanding records, VA should send the claims file to an appropriate examiner to obtain an addendum opinion with respect to the Veteran’s bilateral shoulder claims. The claims file must be reviewed by the examiner. If a new examination is deemed necessary to respond to the request, one should be scheduled. VA should ensure the examiner addresses the following concerns: (a.) Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral shoulder condition began in service, within one year of separation from service, or is otherwise etiologically related to any incident of the Veteran’s military service, to include parachute jumping. The examiner should consider the Veteran’s military personnel record, particularly his individual jump record, if obtained. The examiner must also explain why, in the Veteran’s particular case, his current bilateral shoulder disability would be more likely due to age rather than the rigors of service, including parachute jumps. The examiner should address whether the in-service parachute jumps contributed in any way to the current diagnosis. The examiner should consider the statements from the Veteran regarding his history of symptoms. The examiner should explain why his statements make it more or less likely that a current condition started during service. If indicated, the examiner should explain whether there is a medical reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: i. Why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present; or ii. why the absence of medical records is medically significant. 4. After associating outstanding records with the claims file, VA should send the claims file to an appropriate examiner to obtain an addendum opinion with respect to the Veteran’s back claim. The claims file must be reviewed by the examiner. If a new examination is deemed necessary to respond to the request, one should be scheduled. VA should ensure the examiner addresses the following concerns: (a.) Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not each back condition began in service, within one year of separation from service, or is otherwise etiologically related to any incident of the Veteran’s military service, to include parachute jumping. The examiner should consider the Veteran’s military personnel record, particularly his individual jump record, if obtained. The examiner must also explain why, in the Veteran’s particular case, his current back disability would be more likely due to age rather than the rigors of service, including parachute jumps. The examiner should address whether the in-service parachute jumps contributed in any way to the current diagnosis. In answering these questions, the examiner should consider the statements from the Veteran regarding his history of symptoms. The examiner should explain why his statements make it more or less likely that a current condition started during service. If indicated, the examiner should explain whether there is a medical reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: i. Why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present; or ii. why the absence of medical records is medically significant. 5. After associating outstanding records with the claims file, VA should send the claims file to an appropriate examiner to obtain an addendum opinion with respect to the Veteran’s right knee claim. The claims file must be reviewed by the examiner. If a new examination is deemed necessary to respond to the request, one should be scheduled. VA should ensure the examiner addresses the following concerns: (a.) Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not each right knee condition began in service, within one year of separation from service, or is otherwise etiologically related to any incident of the Veteran’s military service, to include parachute jumping. The examiner should consider the Veteran’s military personnel record, particularly his individual jump record, if obtained. The examiner must also explain why, in the Veteran’s particular case, each current right knee disability would be more likely due to age rather than the rigors of service, including parachute jumps. The examiner should address whether the in-service parachute jumps contributed in any way to the current diagnosis. The examiner should review pertinent literature including articles regarding military parachuting injuries in the file. In answering these questions, the examiner should consider the statements from the Veteran regarding his history of symptoms. The examiner should explain why his statements make it more or less likely that a current condition started during service. If indicated, the examiner should explain whether there is a medical reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: i. Why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present; or ii. why the absence of medical records is medically significant. 6. After associating outstanding records with the claims file including the 2014 NAS report, VA should send the claims file to an appropriate examiner to obtain an addendum opinion with respect to the Veteran’s hypertension claim. The claims file must be reviewed by the examiner. If a new examination is deemed necessary to respond to the request, one should be scheduled. VA should ensure the examiner addresses the following concerns: (a.) The examiner should provide an opinion on whether it is at least as likely at not that the Veteran’s hypertension began during, manifested within one year of, or was otherwise caused by the Veteran’s military service to include his exposure to herbicides during the Vietnam War. The examiner should review and consider pertinent medical literature including the 2014 NAS report, which should be included in the claims file. (b.) The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s hypertension was aggravated beyond its natural progression by his service-connected disabilities to include his mental disabilities and coronary artery disease. The aggravation does not have to be permanent. Temporary aggravation is sufficient for secondary service connection. The examiner should explain why or why not. The examiner should consider pertinent medical literature including articles in the file indicating that hypertension is more common in individuals with mental disabilities. (c.) If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or the examiner. Michael Duffy Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, 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.