Citation Nr: 21026778 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-11 433 DATE: May 4, 2021 REMANDED Entitlement to service connection for a left elbow disorder is remanded Entitlement to service connection for a right elbow disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1976 to March 1979. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This case was most recently before the Board in November 2020, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. In addition, the AOJ granted service connection for bilateral pes planus in a March 2021 rating decision and assigned an initial rating. As this decision represents a full grant of the benefits sought with respect to his claim for service connection for bilateral pes planus, the issues of entitlement to service connection for a left and right foot disorder are no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Service Connection Claims The Veteran seeks entitlement to service connection for left and right elbow disorders, right and left knee disorders, and a right shoulder disorder. As noted in the November 2020 Board remand, the Veteran asserts that his right and left elbows were injured due to physical activities and the rigors of his active service, to include attending Air Assault School. Board hearing transcript, June 1, 2020. Moreover, he asserts that when he injured his right shoulder, he also hit his right elbow; and that when he would seek treatment during service, he was sent away. Id. Further, the Veteran asserts he experiences left elbow symptoms, and has a diagnosis of right elbow pain and tendonitis. Id. The Veteran also asserts that he injured both elbows during a fall while stationed at Fort Campbell, Kentucky. See VA Form 21-4142 Authorization for Release of Information, April 24, 2014. With regard to his bilateral knees, the Veteran asserts that his bilateral knee pain began during active service, is attributable and secondary to his knee injuries, and that his symptoms began during active service and have continued since. Board hearing transcript, June 1, 2020; see also Notice of Disagreement, November 4, 2014. With regard to his right shoulder, the Veteran asserts that he injured his right shoulder during a fall, and as due to physical activities and the rigors of his active service. Board hearing transcript, June 1, 2020; see also VA Form 21-4142 Authorization for Release of Information, April 24, 2014. Moreover, he asserts that around April 1977 while on march orders, he tripped and fell and injured his shoulder, and was treated in the field by a medic; and that since that time, his shoulder pain had worsened and the symptoms have continued since. See Notice of Disagreement, November 4, 2014; see generally VA Form 9, March 12, 2016; Board hearing transcript, June 1, 2020. As noted above, the claims were most recently before the Board in November 2020, when the claims were remanded to the AOJ for further development. Specifically, the November 2020 Board remand directed the AOJ to afford the Veteran new VA examinations to determine the nature and etiology of his claimed left and right elbow disorders, bilateral knee disorders, and right shoulder disorder. With regard to the bilateral elbows and knees, the November 2020 Board remand directed the AOJ to determine the nature and etiology of such disorders, address the Veteran's contention that his claimed disorders were the result of physical activities such as repelling, repetitive physical activity and a fall during service, specifically address the August 1978 complaints of right knee pain and April 1977 treatment for a left knee twisting injury, and provide a complete rationale for all opinions and conclusions reached. With regard to the Veteran's right shoulder disorder, the November 2020 Board remand directed the AOJ to determine whether it was clear and unmistakable (obvious, manifest, and undebatable) that a right shoulder disorder preexisted active service; address the Veteran's reports of a broken right humerus as a child as noted in his service treatment records; if it was determined that it is clear and unmistakable (obvious, manifest, and undebatable) that the preexisting right shoulder disorder WAS NOT aggravated during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress; if it was determined that the right shoulder disorder did not preexist service, is it at least as likely as not (a probability of 50 percent or greater) had its onset in service or is etiologically related to service; address the Veteran's contention that he injured his right shoulder during a fall around April 1977 while marching; address the Veteran's contention that his right shoulder disorder is the result of his in-service physical activity and training; and provide a complete rationale for all opinions and conclusions reached. The requested VA examinations were afforded with respect to the Veteran's claims in February 2021. At that time, the examiner opined the Veteran's left elbow, right elbow, left knee, right knee, and right shoulder were less likely than not related to active service. Specifically, with regard to his bilateral elbows, bilateral knees, and right shoulder, the examiner noted that there was no record of a significant, documented injury while in service, that there must be documented pathology to support the claim and that the Veteran did not have significant injuries related to his elbows, knees, or right shoulder in service. The examiner further opined that there was no nexus medical or scientific evidence linking the conditions to his time in service to a current condition; there must be documented evidence of an injury to support the claim; and that the Veteran's condition was more likely than not rom a nonservice related injury or overuse syndrome. Therefore, the examiner found that without further evidence, the Veteran's claims could not be supported at that time. Additionally, with regard to the Veteran's right shoulder, the examiner opined that the right shoulder disorder clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In that regard, the examiner noted that there was no significant evidence to support a pattern of exacerbation of the pre-service right shoulder condition, and without any further evidence, the Veteran's claim could not be supported at that time. The Board finds the February 2021 VA medical opinions inadequate to decide the claims. In this regard, the examiner relied on the absence of documented in-service injuries to support of the opinions and did not consider the Veteran's reports of in-service injuries. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a veteran's reports of in-service injury and instead relied on the absence of evidence in a veteran's service treatment records to provide a negative opinion). Additionally, the February 2021 VA etiology opinions did not address the Veteran's statements and contentions regarding in-service injuries, as directed by the November 2020 Board remand directives; did not address the specified service treatment records as indicated in the November 2020 Board remand directives; and relied on inaccurate facts, namely, that the Veteran did not have documented in-service events or injuries. Therefore, the Board finds the February 2021 opinions inadequate to decide the claims. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. As such, remand is again to obtain VA opinions that comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, forward the claims file to the examiner who previously examined the Veteran or another appropriate examiner to obtain an addendum opinion to determine the etiology of his claimed right elbow, left elbow, left knee, and right knee disorders. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further in-person examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) Is at least as likely as not (50 percent or greater probability) that the Veteran's right and/or left elbow disorder had its onset during any period of service, or is otherwise related to such period of service? The examiner should specifically address the Veteran's contention that his right and/or left elbow disorder is the result of physical activities such as repelling, repetitive physical activity and a fall during service. (B) Is at least as likely as not (50 percent or greater probability) that the Veteran's left knee and/or right knee disorder had its onset during any period of service, or is otherwise related to such period of service? The examiner should specifically address the Veteran's contention that his physical activity and training during service resulted in his right and/or left knee disorder. The examiner should specifically address the August 1978 complaints of right knee pain and April 1977 treatment for a left knee twisting injury. In offering such opinions, the examiner should consider the Veteran's statements. The examiner must provide a complete rationale for all opinions and conclusions reached. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 3. Following the receipt of outstanding records, forward the claims file to the examiner who previously examined the Veteran to obtain an addendum opinion to determine the etiology of his claimed right shoulder disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (a) Is it clear and unmistakable (obvious, manifest, and undebatable) that a right shoulder disorder preexisted active service? The examiner should address the Veteran's reports of a broken right humerus as a child as noted in his service treatment records. (b) If so, is it clear and unmistakable (obvious, manifest, and undebatable) that the preexisting right shoulder disorder WAS NOT aggravated during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress? (c) If the right shoulder disorder did not preexist service, is it at least as likely as not (a probability of 50 percent or greater) had its onset in service or is etiologically related to service? The examiner should specifically address the Veteran's contention that he injured his right shoulder during a fall around April 1977 while marching. The examiner should also address the Veteran's contention that his right shoulder disorder is the result of his in-service physical activity and training. In offering such opinions, the examiner should consider the Veteran's statements. The examiner must provide a complete rationale for all opinions and conclusions reached. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.