Citation Nr: 21024004 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-32 826 DATE: April 21, 2021 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a low back disability, to include as secondary to service-connected pes planus, is remanded. Entitlement to service connection for a left hip disability as secondary to service-connected pes planus is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected pes planus, is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression, PTSD, and/or mood disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Marine Corps from June 1980 to June 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in August 2018. This case was previously before the Board in June 2019, when it was remanded for development. The case has been returned to the Board for further appellate review. A December 2020 rating decision granted entitlement to service connection for right knee, right ankle, and heart disabilities. This action represents a total grant of the benefit sought on appeal with respect to these issues, and they are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). As an initial matter, the Board notes the Veteran filed claims for service connection for PTSD, mood disorder, and depression. As the Veteran is not expected to possess the medical knowledge to describe the universe of his claim and the record indicates the possibility that other psychiatric disorders are present, the Board has recharacterized his claim as one of service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. Entitlement to service connection for a right shoulder disability is remanded. In December 2020, the Veteran attended a VA examination for his right shoulder disability, at which he reported the onset of his right shoulder symptoms was during service. The examiner noted an August 1987 service treatment record indicating a 15-foot fall resulting in a bruised right arm, and a December 1987 service treatment record noting right upper trapezius soreness related to cervical spasm. The examiner concluded that, as these conditions were acute, there was no evidence of chronicity of care, and the symptoms were subjective only, no nexus was established between the current right shoulder disability and service. The examiner did not discuss whether the August 1987 and December 1987 right shoulder conditions were related and constituted a chronicity of care for right shoulder symptoms. The examiner also relied on the absence of shoulder complaints made on the Veteran’s March 1988 separation examination and the rotator cuff surgery occurring 24 years after separation, but failed to address the Veteran’s report that his shoulder symptoms began in service. In other words, the examiner appears to have impermissibly dismissed the Veteran’s reports of continued shoulder problems solely because these complaints were not documented in medical treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). For these reasons, this opinion is inadequate. In the prior remand, the Board found the June 2013 VA opinion inadequate because it relied solely on the fact the Veteran made no reports of a shoulder disability on his March 1988 separation examination. There are no other opinions in the record regarding a nexus between the Veteran’s current right shoulder degenerative arthritis with rotator cuff repair and his military service. Therefore, there are no adequate opinions in the record, and a remand is necessary to obtain a new opinion that properly addresses the question of service connection for a right shoulder disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide an examination, it must provide an adequate one). 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected pes planus, is remanded. The Veteran was afforded a VA spine examination in December 2020, at which he reported the onset of his low back symptoms was in service in 1982. At the August 2018 Board hearing, the Veteran testified that his back hurt after separating from service, and that his service-connected pes planus condition and related surgeries exacerbated his back pain. The Veteran’s service treatment records reflect treatment for back pain in June 1983, July 1983, October 1984, and June 1986; in July 1983, the Veteran reported his back pain had been chronic for eight months, and in June 1986, he reported his back pain had begun three months prior. The December 2020 VA examiner opined that the current degenerative arthritis of the lumbar spine was not related directly to service, because the in-service low back complaints were diagnosed in July 1983 as low back strain, and was acute only. The examiner noted the Veteran did not report any back problems on his separation examination, and noted that most back muscle strains heal within three or four weeks. The examiner did not address the complaints of low back pain in October 1984 and June 1986, nor did the examiner address the Veteran’s reports that his current back symptoms had their onset in service or discuss any possible relationship between an in-service recurrent lumbar strain and later development of lumbar spine arthritis. Therefore, the direct service connection opinion is inadequate. The December 2020 examiner also opined that the current lumbar spine arthritis is not caused by the service-connected pes planus, as these are separate and unrelated entities. The examiner also noted that, at the time the arthritis was identified in June 2013, the Veteran was of an age where this is not an uncommon finding. The examiner provided much of the same reasoning in concluding that the current lumbar spine arthritis was not aggravated by the pes planus, adding that lumbar spine arthritis is a normal part of the aging process that would develop over time with aging. These secondary service connection opinions are inadequate, as the examiner failed to discuss the causative or aggravating effect, if any, of an altered gait due to the pes planus and related complications on the spine. As with the right shoulder disability issue, the Board previously found the only other opinion in the record regarding a nexus between the Veteran’s low back disability and service to be inadequate. Therefore, a remand is necessary to obtain new opinions addressing the relationship between the Veteran’s current low back disability and his service. See Barr, 21 Vet. App. at 311. 3. Entitlement to service connection for a left hip disability, to include as secondary to service-connected pes planus, is remanded. At the August 2018 Board hearing, the Veteran testified that his left hip hurts due to an altered gait from his service-connected pes planus condition and associated surgeries. The record reflects he had a left hip replacement surgery in July 2012. In December 2020, a VA examiner opined that the current left hip disability was not caused by pes planus, because these conditions are separate and unrelated entities. The examiner also opined that the pes planus did not aggravate the left hip disability because the left hip replacement was performed in 2012 and the surgeries for pes planus began in 2015. The examiner noted an August 2012 VA treatment record indicating the left hip prosthesis remained intact with good alignment. The Board finds these secondary service opinions to be inadequate. The examiner did not address the Veteran’s contention that an altered gait due to pes planus affected his left hip. The Board notes the examiner’s reasoning that the hip surgery occurred prior to the pes planus surgery does not counter the Veteran’s contention, as the pes planus existed during service and an altered gait may have developed at any time during or following service. The examiner also failed to develop and address any lay statements from the Veteran regarding left hip symptoms in the period following the hip surgery when the pes planus condition worsened to the point of requiring multiple surgeries, which may reveal evidence of aggravation of an existing hip disability. Finally, although only a secondary service opinion was requested, the examiner did not address the Veteran’s report at the examination that his left hip pain began during service, due to running for physical training with his pes planus condition. Again, the Board previously found the only other opinion in the record regarding a nexus between the Veteran’s left hip disability and service to be inadequate. Therefore, a remand is necessary to obtain new opinions addressing the relationship between the Veteran’s current left hip disability and his service. See Barr, 21 Vet. App. at 311. 4. Entitlement to service connection for a left knee disability, to include as secondary to service-connected pes planus, is remanded. Similar to the left hip disability claim, the Veteran contends his left knee degenerative arthritis is caused or aggravated by needing to walk with an altered gait due to the service-connected pes planus. He also reported throughout the record, including at the December 2020 VA examination, that his knees became a problem during service due to having to compensate for his feet. The December 2020 VA examiner noted the service treatment records were silent for complaints of knee pain, but opined that the knee condition in service was acute only, there was no evidence of chronicity of care, and the knee symptoms were subjective only. The examiner used precisely the same language in other direct service opinions offered in this case, indicating that, in addition to the inadequacies highlighted above, the analysis for each claim was superficial and failed to take into account the Veteran’s particular circumstances. Here, again, the examiner did not address the Veteran’s reports of pain during service because the service treatment records did not reflect treatment for knee pain, and the separation examination also did not indicate complaints of knee problems. See Buchanan, 451 F.3d at 1337. The examiner also provided secondary service connection opinions, which the Board finds to be inadequate. Again, the examiner opined that the knee and pes planus conditions are separate and unrelated entities, and that a finding of arthritis of the knee is not an uncommon finding in a person of the Veteran’s age. The examiner did not offer an opinion regarding aggravation of the left knee arthritis by pes planus, focusing instead solely on the right knee. See Atencio v. O’Rourke, 30 Vet. App. 74, 91 (2018) (causation and aggravation are independent concepts and should have separate findings and rationale). The Board also previously found the only other relevant opinion in the record to be inadequate. For these reasons, a remand is necessary to obtain a new opinion that adequately addresses the Veteran’s contentions. 5. Entitlement to service connection for migraines is remanded. The Veteran testified that he experienced a severe headache in service, which caused the 15-foot fall in August 1987 noted above, and that he has continued to have headaches since that time. At the December 2020 VA examination, the examiner noted a 2012 diagnosis in the Veteran’s VA treatment records of a migraine disorder, for which the Veteran is treated with prescription migraine headache medication. The examiner opined the current migraine disability is not related to the Veteran’s service because the August 1987 headache noted in the service treatment records was acute, there was no chronicity of care, and the symptoms were subjective. The examiner concluded that, although the Veteran was treated for migraines after service, there is no objective evidence that migraine headaches began during active military service. The examiner found the Veteran’s report of headache symptoms not credible because a June 2014 VA psychiatric examination identified a diagnosis of factitious disorder, which is a disorder in which someone deceives others by appearing sick. The examiner also noted a report by the Veteran that he served as a sniper, which is a claim his personnel records do not support. The examiner found this diagnosis to be a medical bases for finding the reports of the headache symptoms not credible. However, the examiner did not reconcile this finding with the subsequent diagnosis of migraine headache disorder and ongoing treatment with prescription migraine medication. The Board also notes the June 2014 examiner qualified the diagnosis of factitious disorder as provisional, and this disorder has not been confirmed elsewhere in the record. Based on these inadequacies, the Board finds the examiner, rather than providing a medical rationale, impermissibly dismissed the Veteran’s complaints of headache symptoms solely because they were not documented in contemporaneous medical records, and this opinion is inadequate. See Buchanan, 451 F.3d at 1337. The Board previously found the other opinion in the record regarding headaches to be inadequate. Therefore, a remand is necessary to obtain another opinion that adequately addresses the Veteran’s contentions. 6. Entitlement to service connection for an acquired psychiatric disorder, to include depression, PTSD, and/or mood disorder, is remanded. To begin with, the Board notes the two of the VA psychiatric examinations in the record found the Veteran has been experiencing symptoms of depression since childhood. A veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term “noted” refers to “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304(b). A “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). When no preexisting condition is noted upon examination for entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. To rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran’s disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id. Here, the Veteran’s enlistment examination did not note depression or any other psychiatric disorder, and he is presumed sound upon entry into service as to his mental health. Although some records suggest the Veteran may have experienced depression since childhood, such as reports made to the August 2016 and October 2020 VA examiner, these documents do not rise to the level of showing that the condition clearly and unmistakably pre-existed service. Accordingly, the Board finds that the presumption of soundness attached and has not been rebutted. Thus, the question is one of direct service connection. A remand for a new medical opinion addressing direct service connection is required, as the most recent VA opinion in the record is premised upon the existence of depression since childhood. Further, of the three relevant opinions in the record, none has fully addressed all of the factors pertinent to the Veteran’s claim for service connection for an acquired psychiatric disorder. Specifically, in August 1986, the Veteran requested counseling at the mental health unit for trouble handling stress in his professional and personal life, but no examiner has considered this counseling. It does not appear that medical records from 1994 and 1995 indicating depressive symptoms and suicidal ideation have been considered in depth in any of the three opinions in the records. Also, although the Veteran reported an increase in depressive symptoms since the complications with his service-connected pes planus arose, neither of the two most recent examinations fully explains why his choice of religious counseling over formal mental health treatment indicates no aggravation of an underlying psychiatric disorder. Finally, there are several different psychiatric diagnoses in the record, including major depressive disorder, adjustment disorder, personality disorder, and factitious disorder (provisional). On remand, the examiner should address these varying diagnoses and opine whether they were made in error, progressed into a current disorder, or are separate and distinct disorders. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate clinician to determine whether the current right shoulder disability is related to the Veteran’s military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the right shoulder disability began in or is otherwise caused by the Veteran’s active service. In providing the requested opinion, the examiner should discuss the August 1987 and December 1987 service treatment records indicating treatment for right shoulder symptoms. The examiner should address any other pertinent evidence of record. The examiner may not dismiss the Veteran’s contentions regarding a history of shoulder issues solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Forward the claims file to an appropriate clinician to determine whether the current low back disability is related to the Veteran’s military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the low back disability began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the low back disability is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected pes planus disability. The examiner must address the Veteran’s contention that gait changes due to his service-connected pes planus either caused or aggravated his back disability. Please note, causation and aggravation are separate concepts and must be addressed independently. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the low back disability prior to aggravation by the service-connected pes planus. The examiner should discuss the June 1983, July 1983, October 1984, and June 1986 service treatment records reflecting complaints of low back pain, and the significance, if any, of there being multiple complaints of low back pain over three years. The examiner should address any other pertinent evidence of record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Forward the claims file to an appropriate clinician to determine whether the current left hip disability is related to the Veteran’s military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the left hip disability began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the left hip disability is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected pes planus disability. The examiner must address the Veteran’s contention that gait changes due to his service-connected pes planus either caused or aggravated his hip disability. Please note, causation and aggravation are separate concepts and must be addressed independently. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the left hip disability prior to aggravation by the service-connected pes planus. In providing the requested opinions, the examiner should address the Veteran’s lay statements regarding ongoing left hip pain since service, as well as any complaints of worsening in the left hip during the period leading up to, during, and following the Veteran’s multiple pes planus surgeries. The examiner should address any other pertinent evidence of record. The examiner may not dismiss the Veteran’s contentions regarding a history of left hip issues solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Forward the claims file to an appropriate clinician to determine whether the current left knee disability is related to the Veteran’s military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the left knee disability began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the left knee disability is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected pes planus disability. The examiner must address the Veteran’s contention that gait changes due to his service-connected pes planus either caused or aggravated his left knee disability. Please note, causation and aggravation are separate concepts and must be addressed independently. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the left knee disability prior to aggravation by the service-connected pes planus. In providing the requested opinions, the examiner should address the Veteran’s lay statements regarding ongoing left knee pain since service, as well as any complaints of worsening in the left knee during the period leading up to, during, and following the Veteran’s multiple pes planus surgeries. The examiner may not dismiss the Veteran’s contentions regarding a history of left hip issues solely on the basis that they are not recorded in contemporaneous treatment records. The examiner should address any other pertinent evidence of record, including the notation of weakness related to left foot surgery made on the December 2020 VA knee examination. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Forward the claims file to an appropriate clinician to determine whether the current migraine headache disability is related to the Veteran’s military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Please note, if the examiner deems it reasonable, an alternate format such as telehealth interview is acceptable. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the migraine disability began in or is otherwise caused by the Veteran’s active service. The examiner should specifically address the Veteran’s lay statements regarding ongoing headache symptoms since service. The examiner may not disregard the Veteran’s contentions regarding headaches solely on the basis that they are not documented in contemporaneous medical records. If there is a medical basis for finding the Veteran’s report of headache symptoms not credible, this must be fully explained. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 6. Schedule the Veteran for an examination with an appropriate clinician to determine whether any current psychiatric disorder is related to the Veteran’s military service. An alternate format such as telehealth interview is acceptable. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders currently found. In doing so, the examiner should address the diagnoses found in the record, including, but not limited to, major depressive disorder, adjustment disorder, personality disorder, and factitious disorder, and opine whether these diagnoses have been present at any time during the course of the appeal or, if not, whether they were made in error, progressed into a distinct current disorder, or resolved, etc. The examiner should be instructed that, because no psychiatric disorder was clinically noted on the Veteran’s military entrance examination, the Veteran is presumed sound at entrance into the military as to his mental health, and the examiner must disregard any evidence suggesting the Veteran had any preexisting psychiatric disorder prior to military service. For EACH current psychiatric disorder identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that EACH current psychiatric disorder is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected pes planus disability. Please note, causation and aggravation are separate concepts and must be addressed independently. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the psychiatric disorder prior to aggravation by the service-connected disability. (Continued on the next page)   In providing the requested opinions, the examiner should consider and discuss the Veteran’s August 1986 in-service request for mental health counseling for help handling stress, as well as medical records from 1994 and 1995 showing treatment for depressive symptoms and suicidal ideation. The examiner should address any other pertinent evidence of record, including the Veteran’s August 2018 Board hearing testimony. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.