Citation Nr: 21024917 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-31 374 DATE: April 26, 2021 REMANDED The issue of service connection for a cervical spine disability is remanded. The issue of service connection for a lumbar spine disability is remanded. The issue of service connection for a right hip disability is remanded. The issue of service connection for a left hip disability is remanded. The issue of service connection for a right knee disability is remanded. The issue of service connection for a left knee disability is remanded. The issue of service connection for a right elbow/arm disability is remanded. The issue of service connection for a left elbow/arm disability is remanded. The issue of service connection for a right foot disability is remanded. The issue of service connection for a left foot disability is remanded. The issue of service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1979 to January 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously denied by the Board in its August 2018 decision. The Veteran appealed the denial of the claims to the United States Court of Appeals for Veterans Claims (Court). In April 2019, the Court granted a joint motion for partial remand (JMPR), vacating the denial of the claims and remanding the issues back to the Board. The Court specifically noted that the Board erred by failing to consider whether a VA medical opinion was necessary to address the claims of service connection for disabilities associated with the left elbow, right elbow, cervical spine, lumbar spine, left hip, right hip, left knee, and right knee. The Court further noted the Board improperly weighed the probative value of a private medical opinion in finding that the opinion was not new and material evidence in reopening the claims of service connection for a bilateral foot disability, bilateral hearing loss and an acquired psychiatric disability and vacated and remanded those claims to the Board. Additionally, the Court found that the claim of service connection for tinnitus was inextricable intertwined with the remanded claim for bilateral hearing loss and should also be remanded to the Board. In January 2020, the Board reopened the claims for a bilateral foot disability, hearing loss and an acquired psychiatric disorder and remanded all the claims to comply with the terms of the April 2019 JMPR. While the claims were pending on remand, the RO granted service connection for bilateral hearing loss and tinnitus in a September 2020 rating decision. The Board finds these claims are no longer on appeal. An additional remand is necessary to provide the Veteran with adequate VA examinations. In March 2020, the Veteran underwent VA examinations for the claimed acquired psychiatric disorder and disabilities associated with the left elbow, right elbow, cervical spine, lumbar spine, left hip, right hip, left knee, and right knee. On review, the Board finds the opinions associated with these examination reports inadequate. The examiners based the opinions entirely on the absence of evidence, made simple conclusory statements, failed to consider the lay assertions of record, and failed to provide adequate rationale for the conclusions provided as requested in the Board’s previous remand directives. Additionally, the Veteran was not afforded VA examination with respect to his claims of service connection for right and left foot disabilities. The record reflects the Veteran has been diagnosed with foot disabilities and includes statements that the Veteran played football and softball during service. Based on the foregoing, the Board finds remand is required to obtain adequate medical opinions. The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate VA examinations to help determine the like etiology of the claimed cervical spine, lumbar spine, bilateral hip, bilateral knee, bilateral elbow/arm, and bilateral foot disabilities. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed cervical spine, lumbar spine, bilateral hip, bilateral knee, bilateral elbow/arm, and bilateral foot disabilities. Please note: Pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment of earning capacity. (b) Elicit from the Veteran and the record the history of all signs and symptoms associated with the claimed disabilities during service and since separation from service. (c) For each currently diagnosed cervical spine, lumbar spine, bilateral hip, bilateral knee, bilateral elbow/arm, and bilateral foot disabilities (to include pain resulting in functional impairment of earning capacity), provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability) had its onset during service or otherwise related to it. In doing so, please address the following: (i) December 1979 service treatment records reflect reports of right leg pain for 3 days and a diagnosis of possible sciatic nerve damage; (ii) May 1983 general VA examination, which shows a diagnosis of mild to moderate pes planus and low back syndrome; (iii) A buddy statement from E.C. indicating that the Veteran played football during service and a buddy statement from F.O. indicating that the Veteran played football and softball during service; and, (iv) The Veteran’s assertion that his disabilities are related to the rigors of military service. A complete rationale should be provided for all opinions. Please note: lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. 2. Provide the Veteran with an appropriate VA examination to help determine the like etiology of the claimed acquired psychiatric disorder. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed acquired psychiatric disorders. If the examiner concludes that any previously diagnosed psychiatric disorder is no longer shown, he or she must reconcile prior diagnoses, and explain how they have resolved or no longer show any pathology. (b) Elicit from the Veteran and the record the history of all signs and symptoms associated with the claimed psychiatric disorder. (c) For each psychiatric disorder diagnosed, provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability) had its onset during service or otherwise related to it. In doing so, please address the Veteran’s lay assertions as well as November 1983 reports of suffering from a nervous condition during and since service. (Continued on the next page)   A complete rationale should be provided for all opinions. Please note: lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. 3. Thereafter, readjudicate the remanded claims. A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDuffie, 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.