Citation Nr: 21026230 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-33 770 DATE: April 30, 2021 REMANDED Service connection for proctalgia fugax, claimed as rectal disability, is remanded. Service connection for a neck disability is remanded. Service connection for a left foot disability, to include hallux valgus and degenerative joint disease, status post bunionectomy, is remanded. Service connection for hypertension is remanded. Service connection for a left lower extremity disability, to include chronic left knee strain, is remanded. Service connection for a right lower extremity disability, to include right knee degenerative joint disease, is remanded. Service connection for a left upper extremity disability is remanded. Service connection for a right upper extremity disability is remanded. Service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1976 to May 1979 and had subsequent service in the Army Reserve from February 1980 to December 1998. She had a period of temporary duty (TDY) from April 7, 1981 to April 23, 1981. Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training (IDT) during which the veteran was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty prescribed for the Reserves. 38 U.S.C. § 101 (23)(A). Reserve service includes the National Guard of the United States. 38 U.S.C. § 101 (26), (27). Duty, other than full-time duty, performed by a member of the National Guard of any State, is considered to be inactive duty training. 38 C.F.R. § 3.6(d)(4). As detailed in the December 2018 Board of Veterans’ Appeals (Board) Remand, the Regional Office (RO) had undertaken development in 2010 to determine whether the Veteran had periods of ACDUTRA or IDT. The Remand instructed that the Agency of Original Jurisdiction (AOJ) should verify all periods of ACDUTRA, IDT, and TDY and report the dates of such periods. It was directed that merely obtaining a retirement point report is not sufficient to document the exact and specific dates of any periods of such service and that the AOJ needs to provide the exact dates of such service. On Remand, the AOJ obtained a Military Personnel Record which showed a Detail Point Listing for Previous Retirement Year containing data from 1976 to 1998, a July 2020 Information Report, and other military personnel records. 11/23/2019 Military Personnel Record; 07/14/2020 Correspondence; 10/02/2020 Military Personnel Record. The AOJ did not provide the exact dates of the Veteran’s military service, to include ACDUTRA, IDT, and TDY, thus Remand is necessary for compliance. Proctalgia fugax The December 2020 C&P examiner noted the Veteran’s complaints of rectal pain for two weeks in 1978 and found there was insufficient evidence to support a connection between this episode and a later diagnosis of proctalgia fugax. Once the Veteran’s ACUDTRA and IDT service is confirmed, an addendum opinion must be sought which considers this service. Neck disability VA treatment records reflect complaints of neck pain. A July 2007 x-ray of the cervical spine reflects an impression of moderate spondylosis of the cervical spine with narrowing of most of the lower cervical disc interspaces, and a particular moderate narrowing of the C6-C7 disc space. 10/29/2019 CAPRI at 2. An October 2016 VA treatment record reflects that the Veteran had recent neck surgery in September and was still in a cervical collar. 10/29/2019 CAPRI at 89. The surgery was conducted in September 2016 at Flowers Hospital in Dothan, Alabama. Id. at 94. An attempt should be made to obtain these records. An opinion should be sought as to the nature and etiology of the Veteran’s claimed neck disability. Left foot disability An opinion was to be sought as to whether a left foot disability was due to service, to include a February 1979 left foot sprain. The examiner’s attention was directed to: (a) a February 1979 clinical note for pain and swelling near the left great toe, with an assessment of left foot sprain, (b) a November 1996 clinical note in which the Veteran endorsed foot problems for one year while working as a security officer and the assessment was recurrent hallux valgus with possible nerve entrapment or nerve damage, a February 1997 outpatient surgical note regarding bunionectomy with shortening osteotomy, (c) a September 1997 podiatry note which indicates that the Veteran underwent an operation for left hallux bunion, for which she was put on a permanent profile, (d) the October 1997 physical profile for degenerative joint disease of the left foot, metatarsal phalangeal joint, (e) the February 1998 physical profile for, inter alia, left foot arthritis, and (f) the July 2013 VA examination report. In the January 2020 C&P examination the examiner checked the box for VA e-folder review but the ‘Evidence Comments’ does not reflect any reference to the left foot as detailed above. The examiner checked the box that the condition was less likely than not due to service. The examiner stated that the Veteran had been evaluated for left foot pain and swelling, being diagnosed with a left in sprain in 1979 in service. Many years later, in 1997 she was diagnosed with left hallux bunion undergoing bunionectomy. She was last also diagnosed with degenerative joint disease in the left foot. The examiner stated that there is no evidence to suggest a direct causative relationship between the left foot sprain which occurred in the service and her later diagnosis of left foot hallux valgus and degenerative joint disease. Once the Veteran’s ACDUTRA and IDT service is confirmed, an addendum opinion must be sought that considers this service and the history detailed above. Hypertension An opinion was to be sought as to whether hypertension was due to service. The examiner’s attention was directed to: (a) the June 1993 Report of Medical Examination upon which it was noted that the Veteran had a history of treated hypertension, but was not taking medication per medical advice; although examination indicated borderline diastolic elevation with a blood pressure reading of 120/92, (b) the February 1998 Report of Medical History which states that the Veteran had been taking hypertension medication since January 1998, (c) a February 1998 physical profile for, inter alia, hypertension requiring medication; and (d) the July 2013 VA hypertension examination. A January 2020 C&P examination reflects that the examiner checked the box for VA e-folder review but the ‘Evidence Comments’ does not reflect any reference to hypertension as detailed above. The examiner checked the box that the condition was less likely than not due to service as there is not sufficient evidence to support that the Veteran’s hypertension is causally related to her active service or an incident that occurred during service. An addendum opinion must be sought addressing the history detailed above. Disabilities of the right and left knees An opinion was to be sought as to whether a right knee disability or a left knee disability was due to service, to include ACDUTRA, IDT, and TDY. The Veteran contended that the combined wear and tear on her knees from her active service caused her to develop bilateral knee disabilities. She indicated that there was no known trauma to either knee during her July 2013 VA examination. The examiner’s attention was directed to: (a) the February 1998 Report of Medical History upon which the Veteran endorsed “trick” or locked knee and the February 1998 Report of Medical Examination which noted normal lower extremities and (b) the July 2013 VA examination report. In January 2020, the Veteran underwent a C&P examination wherein the examiner diagnosed left knee strain and right knee joint osteoarthritis. The examiner checked the box that the conditions were less likely than not due to service. In the ‘Rationale’ section, the examiner recited the above details regarding the history of the knees and stated the following: The claimed condition is less likely than not incurred in or caused by the claimed in service injury. Review of medical record and exam reveals no causative correlation between right upper extremity disability and the right knee degenerative joint disease or the chronic left knee strain. The examiner did not clarify the ‘condition’ even though there were two disorders in question, and it is not clear why the examiner mentioned the right upper extremity disability as it relates to the disabilities of the knees. It appears that the right upper extremity disability may be the diagnosed right rotator cuff tear diagnosed in the peripheral nerves examination but the examiner did not clarify and it is not clear why the upper and lower extremities were discussed as possibly being causally related. Another opinion from the same C&P examiner reflects that the examiner checked the box that the condition was less likely than not due to service. The examiner stated that the medical record does not support a diagnosis of left knee strain occurring in the service. The Veteran was released from active duty in May 1979. The diagnosis of right knee degenerative joint disease and chronic left knee strain occurred years later. There is no objective evidence to support that the left knee strain was present undiagnosed in the interim. The Board notes that the examiner did not have the benefit of access to the periods of ACDUTRA, IDT, and TDY service, and such opinion appears to address the right and left knees interchangeably. In light of the above, further opinions are necessary with regard to the etiology of the disabilities of the right and left knees. Upper extremities A January 2020 C&P examination reflects diagnoses of left carpal tunnel syndrome and right rotator cuff tear. The examiner stated that the claimed condition is less likely than not incurred in or caused by the claimed in-service injury. The examiner stated that review of medical records and exams reveal no causative correlation between left upper extremity disability and the right knee degenerative joint disease or the chronic left knee strain. Again, the ‘condition’ is not defined and it is not clear the basis for the examiner discussing the left upper extremity disability as it relates to the disabilities of the knees. It is clear that a further opinion is warranted for the left carpal tunnel syndrome and an opinion must be sought regarding the etiology of the right rotator cuff tear. Hearing loss An October 2018 VA treatment record reflects that the Veteran reports hearing loss. VA treatment records reflect that the Veteran has “sensory hearing” and is “hard of hearing.” 10/29/2019 CAPRI at 37, 64. The Veteran should be afforded an examination to assess the nature and etiology of her claimed hearing loss. On Remand, associate outstanding VA treatment records with the claims folder. The matters are REMANDED for the following actions: 1. Associate outstanding VA treatment records for the following periods: a) the period prior to September 4, 2013; b) the period from October 29, 2019. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. Ask the Veteran to complete a VA Form 21-4142 for Flowers Hospital in Dothan, Alabama, pertaining to the claimed neck disability. Make two requests for the authorized records from Flowers Hospital, unless it is clear after the first request that a second request would be futile. 3. Undertake appropriate efforts to verify the nature of the Veteran’s service in the Army Reserve from February 1980 to December 1998, to include whether there were any periods of ACDUTRA and IDT. The AOJ should specify the dates of ACDUTRA, IDT, and TDY. 4. After the Veteran’s periods of active service, to include ACDUTRA, IDT, and TDY have been verified and specified, request that a qualified C&P examiner review the claims folder and provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that proctalgia fugax is due to a period of active service or ACDUTRA, to include the June 1978 complaint of rectal pain. The examiner’s attention is directed to: a) the June 1978 clinical note which states that the Veteran complained of a two-week history of rectal pain, b) the July 2013 VA examination report, and c) the December 2020 C&P examination report. The examiner is advised that the Veteran is competent to report her symptoms and history and that her reports must be considered in formulating the requested opinions. The examiner must provide a comprehensive rationale for all opinions offered. If any requested opinions cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. An examination should be scheduled if deemed necessary by the examiner. 5. After the Veteran’s periods of active service, to include ACDUTRA, IDT, and TDY have been verified and specified, schedule the Veteran for a C&P examination with a qualified examiner to assess the nature and etiology of her claimed neck disability. Upon examination of the Veteran and review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a neck disability is due to a period of active service, ACDUTRA, IDT, or TDY. A complete rationale must be provided for the opinion rendered. 6. After the Veteran’s periods of active service, to include ACDUTRA, IDT, and TDY have been verified and specified, request that a qualified C&P examiner review the claims folder and provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a left foot disability is due to a period of active service, ACDUTRA, IDT or TDY, to include the February 1979 left foot sprain which she contends necessitated surgeries in the 1990’s. The examiner’s attention is directed to: (a) a February 1979 clinical note for pain and swelling near the left great toe, with an assessment of left foot sprain, (b) a November 1996 clinical note in which the Veteran endorsed foot problems for one year while working as a security officer and the assessment was recurrent hallux valgus with possible nerve entrapment or nerve damage, a February 1997 outpatient surgical note regarding bunionectomy with shortening osteotomy, (c) a September 1997 podiatry note which indicates that the Veteran underwent an operation for left hallux bunion, for which she was put on a permanent profile, (d) the October 1997 physical profile for degenerative joint disease of the left foot, metatarsal phalangeal joint, (e) the February 1998 physical profile for, inter alia, left foot arthritis, (f) the July 2013 VA examination report, and (g) the December 2020 C&P examination report. The examiner is advised that the Veteran is competent to report her symptoms and history and that her reports must be considered in formulating the requested opinions. The examiner must provide a comprehensive rationale for all opinions offered. If any requested opinions cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. An examination should be scheduled if deemed necessary by the examiner. 7. After the Veteran’s periods of active service, to include ACDUTRA, IDT, and TDY have been verified and specified, request that a qualified C&P examiner review the claims folder and provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that hypertension is due to a period of active service or ACDUTRA, to include the June 1978 complaint of rectal pain. The examiner’s attention is directed to: (a) the June1993 Report of Medical Examination upon which it was noted that the Veteran had a history of treated hypertension, but was not taking medication per medical advice; although examination indicated borderline diastolic elevation with a blood pressure reading of 120/92, (b) the February1998 Report of Medical History which states that the Veteran had been taking hypertension medication since January 1998, (c) a February 1998 physical profile for, inter alia, hypertension requiring medication; (d) the July 2013 VA hypertension exam and, (e) the December 2020 C&P examination. The examiner is advised that the Veteran is competent to report her symptoms and history and that her reports must be considered in formulating the requested opinions. The examiner must provide a comprehensive rationale for all opinions offered. If any requested opinions cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. An examination should be scheduled if deemed necessary by the examiner. 8. After the Veteran’s periods of active service, to include ACDUTRA, IDT, and TDY have been verified and specified, request that a qualified C&P examiner review the claims folder and provide opinions as to the following: a) whether a right knee disability, to include degenerative joint disease, is at least as likely as not (a 50 percent or greater probability) due to a period of active service, ACDUTRA, IDT, or TDY; b) whether a left knee disability, to include chronic strain, is at least as likely as not (a 50 percent or greater probability) due to a period of active service, ACDUTRA, IDT, or TDY. The Veteran essentially contends that the combined wear and tear on her knees from her active service caused her to develop bilateral knee disabilities. She indicated that there was no known trauma to either knee during her July 2013 VA examination. The examiner’s attention is directed to: (a) the February 1998 Report of Medical History upon which the Veteran endorsed “trick” or locked knee and the February 1998 Report of Medical Examination which noted normal lower extremities, (b) the July 2013 VA examination report, and (c) the December 2020 C&P examination report. The examiner is advised that the Veteran is competent to report her symptoms and history and that her reports must be considered in formulating the requested opinions. The examiner must provide a comprehensive rationale for all opinions offered. If any requested opinions cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. An examination should be scheduled if deemed necessary by the examiner. 9. After the Veteran’s periods of active service, to include ACDUTRA, IDT, and TDY have been verified and specified, request that a qualified C&P examiner review the claims folder and provide opinions as to the following: a) whether left carpal tunnel syndrome at least as likely as not (a 50 percent or greater probability) due to a period of active service, ACDUTRA, IDT, or TDY; b) whether right rotator cuff tear is at least as likely as not (a 50 percent or greater probability) due to a period of active service, ACDUTRA, IDT, or TDY. The examiner is advised that the Veteran is competent to report her symptoms and history and that her reports must be considered in formulating the requested opinions. The examiner must provide a comprehensive rationale for all opinions offered. If any requested opinions cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. An examination should be scheduled if deemed necessary by the examiner. 10. Schedule the Veteran for an examination with a clinician with appropriate expertise to assess the nature and etiology of her claimed bilateral hearing loss. The Veteran should review the claims folder and offer an opinion as to the following: a) whether the Veteran has hearing loss per 38 C.F.R. § 3.385; and, b) whether it is at least as likely as not (a 50 percent or higher degree of probability) that hearing loss of the right and left ears had their onset during her period of service or are otherwise related to the Veteran’s period of service, including in-service noise exposure? The examiner is advised that the Veteran is competent to report her symptoms and history and that her reports must be considered in formulating the requested opinions. The examiner must provide a comprehensive rationale for all opinions offered. If any requested opinions cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.