Citation Nr: 21025431 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-46 128 DATE: April 28, 2021 REMANDED Entitlement to service connection for cold weather injury of the hands and feet, to include on a secondary basis, is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for neck disability is remanded. Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for left shoulder disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty United States Marine Corps from October 2012 to October 2016. This matter is on appeal to the Board of Veterans’ Appeals (Board) from an April 2017 rating decision of the Agency of Original Jurisdiction (AOJ). In June 2020, the Veteran testified at a Virtual Hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. 1. Entitlement to service connection for cold weather injury of the hands and feet, to include on a secondary basis. The Veteran filed a claim for benefits in March 2017, which was denied by rating action of April 2017. The Veteran contends that he was “exposed to cold weather while in Camp Pendleton and Yemen” and that a VA physician told him he “could have Raynaud’s which is a condition related to [his] arteries and the cold weather exposure.” See Notice of Disagreement (NOD) received July 2017. At his hearing, the Veteran further described experiencing symptoms of “numbness and loss of feeling” in his fingers and toes and at times if he was “out for long periods of time in Pendleton” his hands would get “discolored.” See Hearing Transcript at 8. He stated that his symptoms were “dismissed” by his drill instructor and his “cold-weather complaint injuries” were not reviewed in the final examination before leaving active duty. Id. at 9; see also Separation Health Assessment Disability Benefits Questionnaire (DBQ) dated July 26, 2016. The Board observes that the Veteran is currently service-connected for carpal tunnel syndrome for his bilateral wrist disability and was afforded a VA examination for peripheral neuropathy in November 2017. However, there is no VA examination for his claimed “cold weather injuries” or medical opinion taking into consideration the symptoms that began in service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the alternative, there is no opinion addressing the secondary theory of entitlement raised by the record. Thus, remand is necessary to obtain an adequate opinion. 2. Entitlement to service connection for a left foot disability. 3. Entitlement to service connection for a right foot disability. 4. Entitlement to service connection for neck disability. 5. Entitlement to service connection for left knee disability. 6. Entitlement to service connection for right knee disability. At his hearing, the Veteran clarified that his claim for bilateral foot condition was for “flat feet”, which was a separate claim than the cold weather injuries related to his hands and feet addressed above. See Hearing Transcript at 11. In addition to his feet, the Veteran testified that he believes “the rigors of service caused” his current knee and neck conditions, and described his training involving “numerous hikes, workups, and other activities” which resulted in “degradation of the function over time.” Id. at 12. The Veteran also indicated he had “numerous humps and carrying weapons that took a toll on [his] knees and feet… carrying up to 95lbs to 110lbs.” See NOD received July 2017. The Veteran’s VA treatment records of December 2017 show reports of pain in his bilateral knees, neck, lower back and shoulder joint. The Board observes that no VA examinations have been afforded for the claimed disabilities and there is no etiological medical opinion of record taking into consideration the Veteran’s lay statements regarding symptoms in service, post-service medical history, and continuity of symptomatology. McLendon, 20 Vet. App. at 79. Furthermore, the record contains the Veteran’s lay statements regarding the onset of pain in his knees, neck, and feet during service and thereafter. In this regard, the Board notes the holding in the recent Federal Court decision of Saunders v. Wilkie, 886 F.3d 1356 (2018), which requires the AOJ to schedule the Veteran for a VA examination to determine whether the Veteran’s reported pain causes functional impairment such that it may qualify as a disability in the event an underlying diagnosis is not provided. In light of the recent holding in Saunders, and to ensure that his claims are afforded full consideration, the Board concludes that examinations are necessary for the claimed feet, neck and knee disabilities. 7. Entitlement to service connection for left shoulder disability. At his hearing, the Veteran testified that he is seeking direct service connection for his left shoulder pain and seeks an opinion on a diagnosis for his left shoulder because the “onset of pain in both shoulders” occurred at the same time in service in 2012 as his right shoulder, which he is already service-connected. See Hearing Transcript at 17. The record shows a March 2017 VA contract examination for shoulder conditions where the examiner rendered a negative direct service connection opinion. However, the Veteran is currently service-connected for a right shoulder disability diagnosed for rotator cuff tendonitis and joint instability. The Board notes a July 2016 separation examination reflects a diagnosis of “bilateral shoulder recurrent subluxation-instability” of both sides. See Separation Health Assessment DBQ and Shoulder Conditions DBQ dated July 26, 2016. Post-service VA treatment records of December 2017 also shows the Veteran’s report of pain in his left-shoulder joint. Thus, an addendum is needed for an etiological opinion reflecting consideration of the foregoing. 8. Entitlement to service connection for an acquired psychiatric disorder. The record shows a March 2017 VA contract examination for mental disorders where the examiner indicated no current mental disorder that conforms to DSM-5 criteria. However, at his hearing, the Veteran indicated that at the time of his examination in 2017, he was “still processing everything” and “did not realize to the extent” of psychiatric symptoms that were not present at the time of the exam. See Hearing Transcript at 21. Notably, the Board observes the Veteran VA treatment records show history of depression, reports of symptoms of depression, and he endorsed suicidal ideation as recent as March 2020. In light of the testimony presented of his psychiatric symptoms and the inconsistent medical evidence of record, the Veteran should be afforded a new examination. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Cold Weather Injury Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his claimed cold weather injuries of the hands and feet. The Veteran’s electronic claims file must be made accessible to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. The examiner should provide an opinion as to the following: a) Determine whether the veteran has a current diagnosed disability of cold weather injuries of the hands and feet. b) For each such disability diagnosed, is it at least as likely as not (a 50 percent or greater probability) that the disability began during active service or is etiologically related to service? c) The examiner is also asked to specifically address whether each diagnosed disability is at least as likely as not (a 50 percent or greater probability) proximately due to or the result of the Veteran’s service-connected disability, in particular carpal tunnel syndrome. d) The examiner is also asked to specifically address whether each diagnosed disability is at least as likely as not (a 50 percent or greater probability) aggravated, beyond the natural progress of the disease, by the Veteran’s service-connected disability, in particular carpal tunnel syndrome. A complete rationale for all opinions is requested. 2. Pes Planus Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his claimed flat feet/ bilateral foot disability. The Veteran’s electronic claims file must be made accessible to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. Following review of the record, including treatment records, and examination of the Veteran, the examiner should provide an opinion as to the following: a) Determine whether the veteran has a current diagnosed foot disability claimed as flat feet. To the extent that the Veteran does not have a diagnosable disability, the examiner should note whether the Veteran has demonstrated functional impairment, to include pain, in the noted body part. b) For each such disability diagnosed, is it at least as likely as not (a 50 percent or greater probability) that the disability began during active service or is etiologically related to service? c) Is at least as likely as not (50 percent or greater probability) that the Veteran’s claimed disability manifested within one year of his service discharge in October 2016 and, if so, describe the manifestations. A complete rationale for all opinions is requested. 3. Neck Disability Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his claimed neck disability. The Veteran’s electronic claims file must be made accessible to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. Following review of the record, including treatment records, and examination of the Veteran, the examiner should provide an opinion as to the following: a) Determine whether the veteran has a current diagnosed neck disability. To the extent that the Veteran does not have a diagnosable disability, the examiner should note whether the Veteran has demonstrated functional impairment, to include pain, in the noted body part. b) For each such disability diagnosed, is it at least as likely as not (a 50 percent or greater probability) that the disability began during active service or is etiologically related to service? c) Is at least as likely as not (50 percent or greater probability) that the Veteran’s claimed disability manifested within one year of his service discharge in October 2016 and, if so, describe the manifestations. A complete rationale for all opinions is requested. 4. Bilateral Knee Disability Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his claimed bilateral knee disability. The Veteran’s electronic claims file must be made accessible to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. Following review of the record, including treatment records, and examination of the Veteran, the examiner should provide an opinion as to the following: a) Determine whether the veteran has a current diagnosed knee disability. To the extent that the Veteran does not have a diagnosable disability, the examiner should note whether the Veteran has demonstrated functional impairment, to include pain, in the noted body part. b) For each such disability diagnosed, is it at least as likely as not (a 50 percent or greater probability) that the disability began during active service or is etiologically related to service? c) Is at least as likely as not (50 percent or greater probability) that the Veteran’s claimed disability manifested within one year of his service discharge in October 2016 and, if so, describe the manifestations. A complete rationale for all opinions is requested. 5. Left Shoulder Disability Obtain an addendum opinion from a qualified medical professional to determine the nature and etiology of the Veteran’s claimed left shoulder disability. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Based on the review of the record, the examiner should provide an addendum opinion on the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s claimed left shoulder disability began during active service or is etiologically related to service? Is at least as likely as not (a 50 percent or greater probability) that the Veteran’s left disability manifested within one year of his service discharge in October 2016 and, if so, describe the manifestations. In rendering the opinion, the examiner is asked to consider the Veteran’s Separation Health Assessment DBQ and Shoulder Conditions DBQ dated July 26, 2016 and post-service reports of joint shoulder pain and lay evidence of record. A complete rationale for all opinions is requested. 6. Mental Disorder Schedule the Veteran for an appropriate VA examination to determine the nature and etiology the claimed acquired psychiatric disorder. The Veteran’s electronic claims file must be made accessible to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. Following examination of the Veteran, the examiner is to provide an opinion as to the following: Offer an opinion on whether the Veteran meets the DSM-5 criteria for a diagnosis of a psychiatric disorder. For each psychiatric disorder identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the psychiatric disorder is etiologically related to the Veteran’s active duty service. In rendering the opinion, the examiner is asked to consider the Veteran’s VA treatment records show a history of depression and that he endorsed suicidal ideation as recent as March 2020. A complete rationale for any opinion expressed must be provided. 7. Upon completion of the requested development and any additional development deemed appropriate, adjudicate the claim on appeal. If the determination remains unfavorable, the Veteran and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.