Citation Nr: 21024201 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-14 436 DATE: April 22, 2021 REMANDED Entitlement to service connection for Lyme disease residuals is remanded. Entitlement to service connection for low back arthritis is remanded. Entitlement to service connection for right knee arthritis is remanded. Entitlement to service connection for left knee arthritis is remanded. Entitlement to service connection for left shoulder arthritis is remanded. Entitlement to service connection for a pulmonary condition is remanded. Entitlement to a disability rating in excess of 20 percent for right shoulder arthritis with impingement syndrome (right shoulder disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1977 to April 1997. This appeal arises from August 2012 and February 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) and was previously before the Board of Veterans’ Appeals (Board) in September 2018 and November 2019. The August 2012 rating decision denied service connection for obstructive sleep apnea and for a pulmonary condition. In November 2019, the Board granted service connection for obstructive sleep apnea and remanded the pulmonary condition issue for additional development. Regarding obstructive sleep apnea, because the grant of service connection constitutes a full grant of the benefit sought on appeal, that issue is no longer on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The February 2015 rating decision granted service connection for right shoulder arthritis with a 10 percent evaluation effective October 14, 2014; continued a 10 percent evaluation for right shoulder impingement syndrome; and denied service connection for the following five conditions: Lyme disease residuals, low back arthritis, right knee arthritis, left knee arthritis, and left shoulder arthritis. Preliminary Matters The Veteran submitted a February 2016 notice of disagreement (NOD) as to all of the issues included in the February 2015 rating decision, to include indicating that he disagreed with the both the effective date of award and evaluation of disability concerning both right shoulder arthritis and right shoulder impingement syndrome issues. However, in an October 2018 rating decision, the RO explained that it erroneously granted a separate 10 percent rating for right shoulder arthritis in addition to the already assigned 10 percent rating for right shoulder impingement syndrome. In a November 2018 notification letter to the Veteran and his representative, the RO explained the error and recharacterized the already service-connected right shoulder disability to reflect inclusion of both arthritis and impingement syndrome, and essentially increased the already service-connected right shoulder disability rating to 20 percent, effective October 14, 2014. In sum, an October 2014 claim that included, in pertinent part, a right shoulder claim has been construed as a claim for an increased rating for right shoulder disability, now characterized as right shoulder arthritis with impingement syndrome. By way of background, with respect to right shoulder impingement syndrome, a February 1998 rating decision granted service connection for right shoulder impingement syndrome with a noncompensable (zero percent) rating effective May 1, 1997. In a July 1998 rating decision, this noncompensable rating was increased to 10 percent effective April 25, 1998. The Veteran did not appeal the July 1998 decision. Thus, the issue concerning an earlier effective date for right shoulder impingement syndrome is not on appeal, despite the Veteran checking the box on the February 2016 NOD indicating disagreement with such issue and despite the inclusion of the issue in an October 2018 statement of the case (SOC). Additionally, the Board notes that per 38 C.F.R. § 3.400(o)(2), such effective date consideration is part of the appeal for an increased rating for right shoulder disability, and as such, a separate appeal stream regarding the effective date of the rating increase is unnecessary. 1. Entitlement to service connection for Lyme disease residuals is remanded. In an October 2014 statement, the Veteran’s representative claimed that the Veteran has residuals of Lyme disease, to include arthritis in multiple joints. In a statement received with a December 2018 VA Form 9, the Veteran’s representative contends that VA never afforded the Veteran an examination specific for Lyme disease residuals and that his medical records show swollen joints and body aches that the representative suggests may be related to Lyme disease. The Veteran’s service treatment records (STRs) include an April 1993 report of medical history showing that the Veteran had a diagnosis of Lyme disease in November 1989. While VA afforded the Veteran multiple examination as to the joint issues discussed below and the evidence includes VA examination reports with examiner opinions concerning Lyme disease, the Veteran’s representative has repeatedly questioned the competency of the examiner (a nurse practitioner) and the adequacy of the provided opinions, not only regarding Lyme disease, but also orthopedic issues. See, e.g., December 2018 Statement received with VA Form 9 (asserting that the examiner made mere “passive statements” as to Lyme disease residuals; and requesting an examination with a doctor who specializes in orthopedic disabilities as well as an examination specifically for Lyme disease). As the Veteran has not been afforded an examination specifically for Lyme disease, the Board finds that remand is warranted to obtain VA examination with a medical opinion to determine if the Veteran has Lyme disease residuals that had an onset in service or are otherwise related to service. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). 2. Entitlement to service connection for low back arthritis is remanded. VA afforded the Veteran a back examination in January 2015, which shows diagnoses of L2 and L3 anterior compression fractures and lumbar spine DDD (degenerative disc disease). The January 2015 examination report shows that the Veteran contended that he currently has chronic back problems that started in service due to all of the activities in which he participated, to include running and diving. In the December 2018 statement received with a VA Form 9, the Veteran’s representative contends that the Veteran’s STRs show treatment for the back multiple times (in 1988, 1992, and 1997) and that the Veteran complained of arthritis on separation from service. See November 1996 Report of Medical History (showing the Veteran indicated that he has, or has had, arthritis). As mentioned above, the representative also questioned the examiner’s expertise in orthopedic issues and asserted that the examiner (a nurse practitioner) provided no supporting rationale for the negative opinion rendered. Furthermore, in the December 2018 statement, the Veteran’s representative contends that the Veteran has a back disability that is secondary to his service-connected right ankle disability. Because the evidence does not include a medical opinion addressing this theory of secondary service connection, the Board finds that remand is warranted to obtain such an opinion, and as such, the representative’s other concerns as to competency and adequacy pertaining to the January 2015 examination may also be addressed on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 3. Entitlement to service connection for right knee arthritis is remanded. 4. Entitlement to service connection for left knee arthritis is remanded. VA afforded the Veteran an examination for the knees in January 2015, which shows degenerative arthritis in both knees. The January 2015 examination report shows that the Veteran contended that his knees bothered him in service due to running at least 5-6 miles a day and his job as a diver. In the December 2018 statement, the Veteran’s representative contends that the Veteran’s STRs show: right knee treatment in 1981, 1985, and 1989; left knee treatment in 1987 and 1989; and that he complained of arthritis on separation. As mentioned above, the representative also questioned the examiner’s expertise in orthopedic issues and asserted that the examiner (a nurse practitioner) failed to address the Veteran’s arthritis complaints on separation, thus making the negative nexus opinion “unusable.” Furthermore, in the December 2018 statement, the Veteran’s representative contends that the Veteran has knee conditions that are secondary to his service-connected right ankle disability. Because the evidence does not include a medical opinion addressing this theory of secondary service connection, the Board finds that remand is warranted to obtain such an opinion, and thus, the representative’s other concerns as to competency and adequacy pertaining to the January 2015 examination may also be addressed on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 5. Entitlement to service connection for left shoulder arthritis is remanded. VA afforded the Veteran a shoulder examination in January 2015, which shows left shoulder strain. In the December 2018 statement, the Veteran’s representative contends that the Veteran has a left shoulder condition that is secondary to his service-connected right shoulder disability. Additionally, in a February 2016 NOD, the Veteran’s representative argues that “based on the nerve and joint impairment the veteran suffers from in his right shoulder, it stands to reason that he would favor his left shoulder over using his impaired right which would cause abnormal wear and tear due to increased use.” As mentioned above, the representative also questioned the examiner’s expertise in orthopedic issues and asserted that the examiner (a nurse practitioner) provided inadequate rationale for the negative opinion rendered. Because the examiner’s opinion was conclusory and merely stated performance of “current medical literature review” without further explanation, the Board finds that remand is warranted to obtain an adequate opinion with rationale; thus, the representative’s concerns as to competency and adequacy pertaining to the January 2015 examination may also be addressed on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 6. Entitlement to service connection for a pulmonary condition is remanded. The Veteran contends that he has a current lung condition (to include pulmonary nodules) that is related to in-service infections and also that submitted online articles support this contention. See October 18, 2019, Statement. VA afforded the Veteran a respiratory conditions examination in August 2012, which showed “no objective evidence of claimed pulmonary condition.” However, since that examination, VA treatment records show that the Veteran has lung nodules. See, e.g., September 25, 2017, VA Treatment Record (showing CT scan results revealing tiny pulmonary nodules). In the September 2018 remand, the Board noted that the Veteran’s STRs show a history of respiratory infections (to include bronchitis, sinusitis, upper respiratory infections, and pneumonia) and found that another VA examination was warranted. Additionally, the Board raised the notion that “[t]he Veteran was a diver in the U.S. Navy, which also may be significant.” In accordance with the Board’s 2018 remand instructions, the Veteran attended another VA examination in August 2019. The August 2019 examiner provided a negative nexus opinion, explaining that the Veteran’s respiratory infections noted in the STRs were “transitory self-limited syndromes that resolved within a few days without sequelae.” In October 2019, the Veteran’s representative submitted online articles (from the University of Michigan and James McIntosh at the University of Illinois-Chicago), contending that such articles support “a link between the onset of pulmonary nodules and past respiratory infections.” In the November 2019 remand, the Board found that another opinion was necessary to address the Veteran’s contentions involving the submitted articles. Accordingly, VA afforded the Veteran an addendum opinion in August 2020. The opinion noted that the Veteran had: mild emphysematous changes, mild biapical scarring, and scattered lung nodules. The August 2020 examiner indicated review of the articles and provided a negative nexus opinion, reasoning that a link to the Veteran’s service was “not proven for lung nodules, scarring, or emphysematous changes found on imaging and followed since 2017.” In an October 2020 statement, the Veteran’s representative argued that the August 2020 examiner “fixated on the veteran’s lung nodules being benign and thus somehow . . . because they are benign, they are not linked to service.” The representative also asserted that the examiner failed to expound on such conclusion and offered no medical treatise support rebutting the submitted online articles. As with the other issues above, the representative questioned the examiner’s expertise in pulmonary conditions and asserted that the examiner (a nurse practitioner) provided inadequate rationale for the negative opinion rendered and, thus, requested an addendum opinion from a pulmonary specialist. The Board notes that the submitted University of Michigan article does appear to support, at the least, that benign lung nodules could be caused by prior infections, to include as due to scarring caused by pneumonia, and that the August 2020 examiner did focus on the lack of “objective evidence of debilitation” rather than whether it is at least as likely as not that the nodules are related to in-service infections. See 38 C.F.R. § 3.159(a)(1). Furthermore, the issue of whether the Veteran has a pulmonary condition due to his in-service work as Navy diver has been reasonably raised by the record in the Board’s September 2018 remand. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Therefore, the Board finds that remand is warranted for an addendum opinion, and examination if deemed necessary, that adequately addresses the contentions raised by the Veteran and reasonably raised by the record; thus, the representative’s concerns as to competency and adequacy pertaining to the August 2020 opinion may be addressed on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 7. Entitlement to a disability rating in excess of 20 percent for right shoulder disability is remanded. In the December 2018 statement received with a VA Form 9, the Veteran “continues to disagree with all aspects of” the right shoulder evaluation. VA last afforded the Veteran a shoulder examination in January 2015. In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. While neither the evidence nor the Veteran has suggested right shoulder flare-ups, the January 2015 examination did not provide range of motion tests for pain on both active and passive motion and in weight-bearing and non-weight-bearing, or explain why such testing was not conducted, in accordance with Correia. Therefore, remand is warranted for a new VA examination for the Veteran’s right shoulder disability in order to comply with Correia. The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from June 2020 to the present. 2. After outstanding records are obtained to the extent possible, ask the appropriate examiner (for Lyme disease), a physician if possible, to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should clarify whether the Veteran currently has Lyme disease or any Lyme disease residuals and, if so, whether it is at least as likely as not (50 percent probability or greater) that his Lyme disease or any residual found (a) had an onset in service or (b) is otherwise related to service, to include consideration of the STRs showing a November 1989 Lyme disease diagnosis and the Veteran’s report of arthritis and swollen and painful joints noted on separation. See November 1996 Report of Medical History. The examiner should consider all medical and lay evidence of record and provide a complete rationale for all opinions rendered. 3. Ask the appropriate examiner (for back disability), a physician if possible, to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. After reviewing the claims folder, the clinician is specifically asked to answer the following: (a.) Identify any diagnosed back disabilities or back pain that causes functional impairment of earning capacity. (b.) Determine whether any found disability “at least as likely as not” (50 percent or greater probability) had its onset during or is otherwise related to his active military service, to include consideration of the STRs showing treatment for the back multiple times (in 1988, 1992, and 1997) and that the Veteran complained of arthritis on separation from service. See November 1996 Report of Medical History. (c.) Determine whether any found disability is “at least as likely as not” (50 percent or greater probability) caused or aggravated by his service-connected right ankle disability. The examiner should consider all medical and lay evidence of record, to include the Veteran’s contentions that he currently has chronic back problems that started in service due to all of the activities in which he participated, to include running and diving and he has a back disability that is secondary to his service-connected right ankle disability. With regard to the term “aggravated,” as used in 38 C.F.R. § 3.310 (b), the examiner is cautioned that this term does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner should provide a complete rationale for all opinions rendered. 4. Ask the appropriate examiner (for knees), a physician if possible, to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. After reviewing the claims folder, the clinician is specifically asked to answer the following: (a.) Identify any diagnosed left and/or right disability or bilateral knee pain that causes functional impairment of earning capacity. (b.) Determine whether any found disability “at least as likely as not” (50 percent or greater probability) had its onset during or is otherwise related to his active military service, to include consideration of the STRs showing right knee treatment in 1981, 1985, and 1989; left knee treatment in 1987 and 1989; and that he complained of arthritis on separation. See November 1996 Report of Medical History. (c.) Determine whether any found disability is “at least as likely as not” (50 percent or greater probability) caused or aggravated by his service-connected right ankle disability. The examiner should consider all medical and lay evidence of record, to include the Veteran’s contentions that: (a) he currently has bilateral knee disability that started in service due to running at least 5-6 miles a day and his job as a diver and (b) he has bilateral knee disability that is secondary to his service-connected right ankle disability. With regard to the term “aggravated,” as used in 38 C.F.R. § 3.310 (b), the examiner is cautioned that this term does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner should provide a complete rationale for all opinions rendered. 5. Ask the appropriate examiner (for the left shoulder), a physician if possible, to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any left shoulder condition that the Veteran has, to include consideration of left shoulder strain noted in the record and/or any left shoulder pain that causes functional impairment of earning capacity, and opine whether any such disability is at least as likely as not (a 50 percent or greater) caused by or aggravated by his service-connected right shoulder disability, to include consideration of the Veteran’s contentions that he has a left shoulder condition due to overuse as a result of favoring the right shoulder. With regard to the term “aggravated,” as used in 38 C.F.R. § 3.310 (b), the examiner is cautioned that this term does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). 6. Ask the appropriate examiner (for pulmonary conditions), a physician if possible, to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify the Veteran’s current pulmonary conditions, to include consideration of mild emphysematous changes, mild biapical scarring, and scattered lung nodules noted in the record, and opine whether it is at least as likely as not (a 50 percent or greater probability) that any such diagnoses: (a) had an onset in service or (b) is otherwise related to service, to include addressing the submitted online articles (from the University of Michigan and James McIntosh at the University of Illinois-Chicago) suggesting that lung nodules can be caused by prior lung infections, which were noted in the Board’s November 2019 remand, and also consideration of the Veteran’s in-service work as a Navy diver. The examiner should provide a complete rationale for all opinions rendered. 7. Schedule the Veteran for a VA examination with an appropriate professional, a physician if possible, to determine the extent and severity of his service-connected right shoulder disability, to include arthritis and impingement syndrome. All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion. The examination should include testing results on both active and passive motion, and in weight-bearing, and non-weight-bearing. The examiner should assess where pain begins on the Veteran’s initial range of motion and upon repetitive testing. The examiner should also describe any pain, weakened movement, excess fatigability, and incoordination present. If the examiner is unable to conduct such testing or concludes that such testing is not necessary in this case, he or she should clearly explain why. The examiner should consider all medical evidence of record and the Veteran’s lay statements regarding the functional impact of his right shoulder disability. 8. After the above development and any other development deemed necessary is completed, readjudicate the claims. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Santiago, 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.