Citation Nr: 21027329 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 14-09 667 DATE: May 5, 2021 REMANDED Service connection for a left shoulder disability is remanded. Service connection for a right shoulder disability is remanded. Service connection for a right hip disability is remanded. Service connection for a left hip disability is remanded. Service connection for a right knee disability is remanded. Service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1989 until her honorable discharge in September 1994. She served in the Southwest Asia Theater of Operations, particularly in Saudi Arabia, from December 1990 to April 1991. Following her active duty service, she served in the Colorado Army National Guard from May 1996 untiled her honorable discharge in May 1997. Her Military Occupational Specialty (MOS) was as a medical specialist. This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from a March 2013 decision by the Denver, Colorado, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). In a July 2018 decision, the Board denied the Veteran's claims for service connection for bilateral hip, bilateral shoulder, and right knee disabilities. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court issued a Memorandum Decision that vacated the portion of the Board's July 2018 decision that denied her foregoing claims and remanded them for readjudication. The Court held that the Board provided an inadequate statement of reasons or bases for finding that the duty to assist was satisfied. The Court found there were potentially outstanding VA medical records. In July 2020, the Board remanded the case to the RO for further development consistent with the Court's Memorandum Decision. In addition, the Veteran's claim for service connection for a respiratory disability was included within the Board's July 2020 remand order. Specifically, the Board directed the RO to obtain an addendum opinion addressing the etiology of the Veteran's claimed respiratory disability. The claims now return to the Board. 1. Service connection for a left shoulder disability is remanded. 2. Service connection for a right shoulder disability is remanded. 3. Service connection for a right hip disability is remanded. 4. Service connection for a left hip disability is remanded. 5. Service connection for a right knee disability is remanded. The issues in #1 through #5 are addressed together as they have the same legal analysis. The Board finds the RO accomplished the directives set forth in the July 2020 remand. That is, the RO sought and obtained all outstanding VA medical records associated with the Veteran's VA treatment, to include Denver VA Medical Center (VAMC) records from 1995 to 1996. Notably, the RO made reasonable efforts to locate additional Denver VAMC records between 1996 and 2003. After reasonable attempts, the RO informed the Veteran no such records were found and were therefore deemed unavailable and any further requests were futile. The RO notified the Veteran of its decision to cease attempts to obtain these records. At this point, the Board observes the only VA medical examinations of record addressing the etiology of the Veteran's bilateral hip, bilateral shoulder, and right knee disabilities occurred in February 2013, over eight years ago. Importantly, those medical examinations focused only on whether the Veteran's musculoskeletal disabilities were etiologically related to her service in Southwest Asia, addressing whether those disabilities had specified etiologic and pathologic origins. An isolated VA medical opinion in January 2014 addressed whether the Veteran's right hip disability was due to right hip pain that occurred during service. And that opinion is insufficient presently because it did not address any of the Veteran's lay statements about her right hip pain. See Dalton v. Peake, 21 Vet. App. 23, 3940 (2007) (a medical opinion is inadequate if it does not take into account a veteran's reports of symptoms and history, even if recorded in the course of the examination). No other medical opinions are of record addressing any of the Veteran's musculoskeletal disabilities. Since the February 2013 VA examinations and the January 2014 VA medical opinion, there has been substantial development of the Veteran's claims. Particularly, the Veteran testified before the Board in April 2018 and her testimony provided additional information not considered by any VA medical examiner to date. She testified that her shoulders hurt during basic training and continued thereafter. She testified about carrying and lifting heavy objects and working on vehicles that strained her shoulders. Her shoulders began bothering her about six months prior to the end of her service. She testified that she constantly rode vehicles in rough terrain while stationed in Saudi Arabia and Germany. Due to the lack of seat cushions, she believed her hips were impacted. She testified about experiencing bilateral hip pain during her service. Her hips began bothering her about six months prior to the end of her service. She testified that due to rough terrain, constant use of her legs to get on and off vehicles, standing for long periods of time, and general bumps to her knees in service she believed this led to her current right knee disability. Following her Board hearing, the Veteran submitted an email correspondence documenting her asserted in-service events related to her musculoskeletal disabilities. She said she hurt her shoulders during basic and advanced training while pushing, lifting, and carrying objects, to include weapons and casualties. She said he had knee pain while driving military vehicles over rough terrain during service in Southwest Asia. In light of this evidence, which no VA medical examiner has considered, the Board finds updated VA medical examinations and opinions are necessary to adjudicate the Veteran's claims for service connection properly. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Moody v. Wilkie, 30 Vet. App. 329, 341 (2018). 6. Service connection for a respiratory disability is remanded. Consistent with the Board's July 2020 remand directive, the RO obtained a January 2021 VA-contracted medical opinion addressing the Veteran's claimed respiratory disability. Unfortunately, the opinion is equivocal. Remand is required to obtain an addendum opinion. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings). Initially, the examiner opined the Veteran had no current respiratory condition that could be explained by her reported symptoms. But the examiner then opined that the Veteran's dyspnea upon exertion is more likely simply a result of deconditioning, not due to any medically unexplained chronic multi-symptom illness (MUCMI). The Board finds that the examiner's opinion is unclear as to whether the Veteran has either an undiagnosed respiratory illness or a medically unexplained chronic multi-symptom illness. In addition, the examiner opined, "It is unlikely that her current primary symptom (shortness of breath) is due to her military service." The examiner reasoned that "t]here have been a lack of objective data on [pulmonary function tests] or imaging that would be able to explain a biological mechanism for her shortness of breath. . . but there is no likely explanation for an environmental exposure in the early 1990s . . . ." This seems to suggest the Veteran has an undiagnosed illness. Yet, the examiner later reasoned that the Veteran's "obesity plus deconditioning is the most likely cause for her dyspnea with mild to moderate exertion." The Board struggles to understand whether the Veteran has an undiagnosed respiratory illness or a MUCMI in light of the examiner's opinion attributing the Veteran's symptoms to her weight and deconditioning. Clarification of the examiner's opinion and rationale are necessary in this instance. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain a VA examination from an appropriate qualified clinician addressing the onset and etiology of the Veteran's right shoulder and left shoulder conditions. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion as to the following: (a.) Please identify any right shoulder disability the Veteran had during the pendency of the claim, including at the present. (b.) Please identify any left shoulder disability the Veteran had during the pendency of the claim, including at the present. (c.) For each identified right shoulder disability, please opine as to whether it is at least as likely as not (50 percent probability or more) that such right shoulder disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. (d.) For each identified left shoulder disability, please opine as to whether it is at least as likely as not (50 percent probability or more) that such left shoulder disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The Veteran's April 2018 Board testimony during which she testified experiencing bilateral shoulder pain in service that she believes is due to basic and advanced physical training and general duties, which included lifting and carrying heavy objects, to include weapons and casualties. And her testimony that she was too busy to report for treatment. See April 2014 Board Hearing Transcript, at 3. (b.) The Veteran's April 2018 email correspondence in which she stated she hurt her shoulders during basic and advanced training while pushing, lifting, and carrying objects, to include weapons and casualties. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of her disability, including any evidence concerning continuity of symptomatology, as she is legally permitted to report her symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a right or left shoulder disability in service or the assertion that an in-service event, injury, or illness led to her current right or left shoulder disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). 3. After any additional records are associated with the claims file, obtain a VA examination from an appropriate qualified clinician addressing the onset and etiology of the Veteran's right hip and left hip conditions. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion as to the following: (a.) Please identify any right hip disability the Veteran had during the pendency of the claim, including at the present. (b.) Please identify any left hip disability the Veteran had during the pendency of the claim, including at the present. (c.) For each identified right hip disability, please opine as to whether it is at least as likely as not (50 percent probability or more) that such right hip disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. (d.) For each identified left hip disability, please opine as to whether it is at least as likely as not (50 percent probability or more) that such left hip disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) October 21 and 25, 1993, service treatment records documenting complaints and treatment for right hip pain. (b.) The Veteran's April 2018 Board testimony during which she testified experiencing bilateral hip pain about six months prior to her separation from service. That she believes her bilateral hip pain might be due to the constant driving over rough terrain while in Germany and Saudi Ariba as the vehicles did not have cushions. And her testimony that she was too busy to report for treatment. See April 2014 Board Hearing Transcript, at 35. (c.) The Veteran's April 2018 email correspondence in which she describes current bilateral hip pain. (d.) The Veteran's spouses April 2018 email correspondence in which he describes her current bilateral hip pain and how she must use pillows to support her hips while sleeping. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of her disability, including any evidence concerning continuity of symptomatology, as she is legally permitted to report her symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a right or left hip disability in service or the assertion that an in-service event, injury, or illness led to her current right or left hip disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). 4. After any additional records are associated with the claims file, obtain a VA examination from an appropriate qualified clinician addressing the onset and etiology of the Veteran's right knee conditions. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion as to the following: (a.) Please identify any right knee disability the Veteran had during the pendency of the claim, including at the present. (b.) For each identified right knee disability, please opine as to whether it is at least as likely as not (50 percent probability or more) that such right knee disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The Veteran's April 2018 Board testimony during which she testified she experienced bilateral knee trauma (bumping of knees), dealt with constant up and down motions climbing into and out of vehicles, stood for long periods of time, and was constantly driving on rough terrain that led to pain in her knees. See April 2014 Board Hearing Transcript, at 56. (b.) The Veteran's April 2018 email correspondence in which she stated she experience in-service knee pain while driving military vehicles over rough terrain during service in Southwest Asia. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of her disability, including any evidence concerning continuity of symptomatology, as she is legally permitted to report her symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a right knee disability in service or the assertion that an in-service event, injury, or illness led to her current right knee disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). 5. After any additional records are associated with the claims file, obtain an addendum opinion from the January 2021 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's respiratory disability. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide opinions regarding the following: (a.) Please opine whether it is at least as likely as not (50 percent probability or higher) that the Veteran exhibited signs or symptoms associated with a respiratory disability during the appeal that constitute: a. An undiagnosed illness; b. A medically unexplained chronic multi-symptom illness; or c. if the claimed symptoms can be attributed to any specific pathology or diagnosed disorder (b.) Is the etiology of any respiratory condition inconclusive? For legal purposes, this discussion must take into consideration this Veteran's unique symptoms. If the etiology is partially understood, this should be explained. (c.) Is the pathophysiology of any respiratory condition inconclusive? For legal purposes, this discussion must take into consideration this Veteran's unique symptoms. If the pathophysiology is partially understood, this should be explained. (d.) If the examiner finds the Veteran's respiratory symptoms can be attributed to a known diagnosis, please opine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's respiratory disability, to include symptoms, began during or are related to her active duty service, to include as due to environmental hazards in the Southwest Asia Theater of Operations. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The Veteran's military records document service in Southwest Asia Theater of Operations, particularly in Saudi Arabia, from December 1990 to April 1991. (b.) The July 15, 1994, separation examination report of medical history in which the Veteran indicated experiencing shortness of breath, sinusitis, and palpitation or pounding heart. (c.) An October 23, 1989, service treatment record (STR) documenting complaints of chest pain, tightening of chest, shortness of breath, and the Veteran's statements of having a history of such symptoms. (d.) A July 26, 1989, STR documenting complaints of fatigue and drowsiness. (e.) May 11 and 16, 1990, STRs documenting bibasilar pneumonitis and chest pain. (f.) The Veteran's April 2018 Board testimony during which she testified she has been diagnosed with asthma. Her testimony that she experiences shortness of breath and chest pain. Her testimony about being exposed to various environments during her service in Germany and Southwest Asia. See April 2014 Board Hearing Transcript, at 7. (g.) Her April 2018 email correspondence in which she states that she was exposed to smoke during her service in Southwest Asia. That she experiences pneumonia, shortness of breath for long periods of time, and that she was diagnosed with left ventricular hypertrophy by a private medical facility. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of her respiratory symptoms/disability, including any evidence concerning continuity of symptomatology, as she is legally permitted to report her symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a respiratory disability in service or the assertion that an in-service event, injury, or illness led to her current respiratory symptoms/disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.