Citation Nr: 21025152 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-18 990 DATE: April 27, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a right hand disability, to include as due to service-connected shoulder conditions is remanded. Entitlement to service connection for a right knee disability, to include as due to service-connected bilateral plantar fasciitis is remanded. Entitlement to service connection for a left knee disability, to include as due to service-connected bilateral plantar fasciitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from July 1977 to July 1981. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2020 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional VA examinations. The October 2020 Board decision also addressed the Veteran raising the issue of clear and unmistakable error (CUE) with regard to the rating decisions that originally denied the claims. In January 2020 the RO determined there was no clear and unmistakable error to warrant revision of the prior decisions and the Veteran did not appeal the determination within one year of the decision. 1. Entitlement to service connection for hypertension is remanded. Pursuant to the October 2020 Board remand, the Veteran received a VA examination in December 2020. The examiner provided a negative opinion. The examiner did note instances of elevated blood pressure in service. In the rationale provided, the examiner relied on the Veteran being diagnosed with hypertension in August 1994, 12 years after separation from service. However, private treatment records dated in March 1994 identify a prior medical history of hypertension, and subsequent records in May 1994 reflect that the Veteran was taking blood pressure medication. See March 1994 Physical Therapy Initial Evaluation; May 1994 Internal Medicine Note. Accordingly, the VA medical opinion is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding a medical examination based on an inaccurate factual premise inadequate for rating purposes). Accordingly, remand is required. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran received a VA examination to assess the nature and etiology of his psychiatric conditions in December 2020. The examiner provided a negative opinion. However, the examiner based her rationale on the absence of treatment records until 2011. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). The Veteran attested to experiencing symptoms in service ever since falling into a ravine during a training exercise in Panama. He reported experiencing symptoms since his active duty service and relayed a suicide attempt in the 1980s. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate.”). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). Accordingly, remand is warranted. 3. Entitlement to service connection for a right hand disability, to include as due to service-connected shoulder conditions is remanded. The October 2020 Board remand directed the examiner to provide an opinion as to direct service connection and secondary service connection. The examiner was to address whether the Veteran’s right hand disability was due to or aggravated by his service-connected shoulder conditions. The December 2020 examiner did not provide an opinion as to causation. The Board sincerely regrets the additional delay occasioned by multiple remands. However, the Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. Additionally, the examiner did not diagnose the Veteran and stated that pain alone does not constitute a physical impairment. This is contrary to the holding in Saunders v. Wilke, where the Federal Circuit held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Furthermore, the Veteran’s treatment records list numerous instances of right hand joint pain and arthritis. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, remand is required. 4. Entitlement to service connection for a right knee disability, to include as due to service-connected bilateral plantar fasciitis is remanded. 5. Entitlement to service connection for a left knee disability, to include as due to service-connected bilateral plantar fasciitis is remanded. Pursuant to the October 2020 Board remand, the Veteran received a VA examination for his bilateral knee condition in December 2020. The examiner was directed to provide an opinion for direct and secondary service connection. The examiner provided a negative opinion for both but did not provide a rationale for secondary service connection. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Accordingly, remand for an addendum opinion is necessary. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the nature and etiology of the Veteran’s hypertension. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran—if deemed necessary by the examiner—and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: Whether it is at least as likely as not (a 50 percent probability or greater) that his hypertension was incurred in, aggravated by, or etiologically related to his military service. The examiner should address the Veteran’s elevated blood pressure readings during active service and his statements regarding continuity of symptoms. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Obtain an addendum opinion to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran—if deemed necessary by the examiner—and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: Whether it is at least as likely as not (a 50 percent probability or greater) that his acquired psychiatric disorder was incurred in, aggravated by, or etiologically related to his military service. The examiner should address the Veteran’s statements regarding in-service onset and continuity of symptoms. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Obtain an addendum opinion to determine the nature and etiology of the Veteran’s right hand disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran—if deemed necessary by the examiner—and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that his right hand disability was incurred in, aggravated by, or etiologically related to his military service. (b) Whether it is at least as likely as not (a 50 percent probability or greater) that his right hand disability was caused or aggravated by his service-connected shoulder conditions. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Obtain an addendum opinion to determine the nature and etiology of the Veteran’s right and left knee conditions. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran—if deemed necessary by the examiner—and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that his right and left knee conditions were incurred in, aggravated by, or etiologically related to his military service. (b) Whether it is at least as likely as not (a 50 percent probability or greater) that his right and left knee conditions were caused or aggravated by his service-connected feet conditions. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, 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.