Citation Nr: 21030257 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-42 986 DATE: May 18, 2021 REMANDED Entitlement to service connection for flat feet is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection a left knee disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection a right arm disability (to include the right elbow and wrist) is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and major depressive disorder is remanded. REASONS FOR REMAND The Appellant served on active duty for training (ACDUTRA) from November 1982 to May 1983 and served in the United States Army Reserve (USAR) from November 1982 to October 1995. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Appellant testified before the undersigned at a February 2020 Board hearing. A transcript of the hearing is of record. The Board previously remanded this matter in April 2020. 1. Confirmation of Serviceall claims The Appellant contends that all of her claimed disabilities stem from her time in officer candidate school (OCS) at Camp Lincoln reportedly from June 1991 to March 1992. Notably, the Appellant contends her acquired psychiatric disorder was related to harassment she received during OCS. In April 2020, the Board remanded this matter to the AOJ in order verify the Appellant's periods of active duty service, ACDUTRA and INACDUTRA, and specifically, to determine whether the Appellant was in OCS from June 1991 to March 1992 at Camp Lincoln in Illinois. The Board directed the AOJ make a formal finding if records relating to any service in OCS at Camp Lincoln do not exist, and to specifically discuss the Appellant's promotion in April 1991 and an award she received for leading training from August 1990 to May 1991. The Board notes that on remand, the AOJ conducted development including a PIES (Personnel Information Exchange System) request in July 2020 and a DFAS (Defense Finance and Accounting Service) request in August 2020. It appears that such requests did not yield any new information. In November 2020, the Appellant submitted Leave and Earnings statements from June 1991 to March 1992, titled "Jumps-Army." A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). The Board finds the AOJ failed to substantially comply with the April 2020 Board remand. No formal finding memorandum was prepared documenting its efforts to verify the Veteran's service or addressing the evidence that the Appellant had service from June 1991 to March 1992. On remand, the Board finds that another search must be conducted to verify the Appellant's dates of service specifically from June 1991 to March 1992. If the AOJ cannot verify the service, it must provide a formal finding to that effect, and address the evidence of a promotion in April 1991, leading training from August 1990 to May 1991, and the Leave and Earning Statements from June 1991 to March 1992. 2. Entitlement to service connection for flat feet is remanded. The Appellant contends that her bilateral pes planus was aggravated during OCS from June 1991 to March 1992 from marching. The Appellant underwent a VA foot examination in August 2014. The examiner found the Appellant's pes planus was noted upon entry in service and it was not aggravated by her service. VA obtained an addendum medical opinion in December 2020. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated there is no evidence of a foot condition arising during service. The separation examination is not available, however, USAR physicals were negative for foot conditions in 1988 and 1989. The examiner stated that clearly the Appellant did not have a foot condition that arose or was aggravated by her preexisting pes planus while in service. The examiner stated that the Appellant did not have foot problems documented until more than 20 years post-service, and therefore it is less likely than not the Appellant developed foot conditions while in service or experienced aggravation of the preexisting pes planus during service, including marching during OCS. Unfortunately, the Board finds another remand is required. The Board finds that the addendum medical opinion is not adequate for adjudication. An opinion that relies solely on the fact that there are no documented records of the condition and ignored the Appellant's statements that she had pain continuously since OCS is not adequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 N.1 (Fed. Cir 2006). The Board finds that an addendum medical opinion is warranted. 3. Entitlement to service connection for disabilities of the left knee, right arm (to include the right elbow and wrist), and bilateral ankles is remanded. The Appellant contends that she was injured while in OCS. Specifically, she testified at the February 2020 Board hearing that she injured her left knee, right wrist, and ankles occurred in OCS. On remand, the Appellant underwent a series of examinations for her left knee, right arm, and ankles in January and February 2021. In January 2021, the Appellant underwent a VA knee examination. During the examination, the Appellant stated her left knee pain had its onset in 1991. The Appellant reported that she fell and landed on some rocks that resulted in a laceration on her knee. The Appellant stated that her knee pain had gotten worse over time. The examiner noted that the upon physical examination, the Appellant had a normal left knee and that there was no objective evidence to support of a knee diagnosis. The examiner stated the symptoms were subjective only and did not rise to the level of a diagnosis at the time of the examination. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that there is no chronic diagnosis made for the left knee, that the objective examination and the symptoms were subjective only. In January 2021, the Appellant underwent an elbow and forearm conditions examination. During the examination, the Appellant reported the onset was in the 1990s. The Appellant reported pain in her right arm that shot down from her neck to her right arm. The examiner found a normal physical examination, with no objective evidence to warrant a right elbow diagnosis at the time of the examination. The examiner stated the symptoms were subjective only and did not rise to the level of a diagnosis. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no chronic diagnosis made for the right arm. The objective examination was normal and there were only subjective symptoms. In January 2021, the Appellant underwent a VA ankle examination. During the examination, the Appellant reported that during basic training she developed ankle pain. The Appellant reported that the pain in her ankles had gotten worse over time. The examiner found a normal physical examination, with no objective evidence to warrant any bilateral ankle diagnosis at the time of the examination. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no chronic diagnosis made for the either ankle. The objective examination was normal and there were only subjective symptoms. The Board finds that a remand for these issues is required. The examiners' opinions found the Appellant did not have current bilateral ankle, right arm, or left knee disabilities because there were no diagnosis only subjective symptoms. The Board finds that VA examiners opinion are inadequate for adjudication. Pain may constitute a disability if the pain causes functional impairment. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Therefore, upon remand, an addendum medical opinion is required to determine whether the Appellant's subjective symptoms cause functional impairment, and if so, whether those symptoms are at least as likely as not related to any qualifying service. 4. Entitlement to service connection for a right shoulder is remanded. The Appellant contends her right shoulder injury relates to an injury occurred while she was in OCS from June 1991 to March 1992. The Appellant underwent a VA shoulder examination in January 2021. The examiner diagnosed the Appellant with right shoulder impingement syndrome. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury event or illness. The examiner reasoned that there were no service treatment records related to the right shoulder and no objective evidence to support any injury of the right shoulder in service. The examiner noted that Appellant's first complaints regarding the right shoulder occurred in 1991, years after active service. The Board finds that a remand is required to allow for further development into the Appellant's qualifying service. The January 2021 examiner found that the first complaints of right shoulder pain were in 1991. The qualifying period of service in dispute is from June 1991 to March 1992. Therefore, if this period is confirmed, then an addendum medical opinion is required to determine whether the Appellant's right shoulder disability is related to the claimed injury in 1991. 5. Entitlement to service connection for cervical spine is remanded. The Appellant contends her neck disability is etiologically related to an in-service injury during OCS from June 1991 to March 1992, or in the alternative secondary to her pes planus. The Appellant underwent a VA neck examination in January 2021. The examiner diagnosed the Appellant with degenerative arthritis of the spine. The Appellant reported that she injured her neck while she was in OCS during an obstacle course injury. The Appellant also reported she was required to carry a footlocker above her head and that she had pain since that time. The examiner reasoned that the Appellant's neck pain during service was acute only and there is no evidence of chronicity of care. The examiner noted there are no service treatment records of neck issues and the degenerative arthritis of the cervical spine occurred more than 30 years after service. The examiner found no objective evidence to support that a chronic diagnosis of the cervical spine that was incurred in or resulted from service. The examiner noted that conflicting medical evidence indicates that the Appellant had back issues in 1991. The examiner stated that the problems since 1991 were already years removed from the Appellant's active service. The Board finds that a remand is required to allow for further development into the Appellant's qualifying service. The January 2021 examiner noted the sought treatment in 1991, however it was years removed from the Appellant's service. The qualifying period of service in dispute is from June 1991 to March 1992. Therefore, if this period is confirmed, then an addendum medical opinion is required to determine whether the Appellant's cervical spine arthritis is related to the claimed injury in 1991. 6. Entitlement to service connection for a back disability is remanded. The Appellant contends her back disability is etiologically related to an in-service injury during OCS from June 1991 to March 1992, or in the alternative secondary to her pes planus. The Appellant underwent a VA back examination. The examiner diagnosed the Appellant with a lumbar strain. The examiner opined that the claimed condition was less likely than not caused, incurred, or caused by the claimed in-service injury vent, or illness. The examiner reasoned that the back pain during service was acute only and there is no evidence of chronicity of care. The examiner stated that there was no chronic diagnoses or service treatment record for back issues in service. The examiner noted that the appellant may have had back pain in service, but the complaints were suggestive only and not risen to the level of a diagnosis. The examiner noted that conflicting medical evidence indicates that the Appellant had back issues in 1991. The examiner stated that the problems since 1991 were already years removed from the Appellant's active service. The Board finds that a remand is required to allow for further development into the Appellant's qualifying service. The January 2021 examiner noted the sought treatment in 1991, however it was years removed from the Appellant's service. The qualifying period of service in dispute is from June 1991 to March 1992. Therefore, if this period is confirmed, then an addendum medical opinion is required to determine whether the Appellant's back disability is related to the claimed injury in 1991. The matters are REMANDED for the following action: 1. Undertake appropriate development to verify through official channels all periods of active duty service, ACDUTRA and INACDUTRA. Specifically, determine whether the Appellant was in OCS from June 1991 to March 1992 at Camp Lincoln in Illinois. All efforts to obtain the evidence must be documented in the claims file. If, after all procedurally appropriate actions to locate and secure the records have been exhausted, and it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile, make a formal finding to that effect and address the following: (a.) The Appellant was promoted in April 1991. (b.) The Appellant received an award for leading training from August 1990 to May 1991. (c.) Earnings and Leave Statements from June 1991 to March 1992. 2. If the evidence indicates that the Appellant has a qualifying period of service between 1991 and 1992 then, obtain an addendum VA medical opinion from an appropriate clinician regarding the Appellant's pes planus. The examiner must determine whether the Appellant's pes planus was at least as likely as not aggravated by her service. Specifically, whether the Appellant's marching in OCS aggravated her pes planus beyond the natural progression of the disorder. i. The examiner should address the Appellant's February 2020 testimony that her feet had hurt continuously since OCS. 3. If the evidence indicates that the Appellant has a qualifying period of service between 1991 and 1992 then, obtain an addendum medical opinion from an appropriate clinician concerning the Appellant's left knee, bilateral ankles, and right arm (to include right elbow and right wrist) disabilities. The examiner must provide the following opinion: (a.) Whether the Appellant's left knee, bilateral ankle, and/or right arm (to include right elbow and right wrist) symptoms including pain are productive of functional impairment. In doing so, the examiner is informed that for VA compensation purposes, pain alone, even in the absence of a diagnosed condition, may be considered a disability when it results in functional loss. (b.) Whether the any left knee, bilateral ankle, and/or right arm (to include right elbow and right wrist) symptoms including pain are at least as likely as not related to an in-service injury, event, or disease, including a fall during OCS. i. Address the Appellant's private treatment provider who stated that the Appellant's leg disabilities had been present since at least 1991. (c.) Whether any bilateral ankle symptoms are at least as likely as not caused or aggravated by the Appellant's pes planus. (d.) For each opinion provide a complete medical rationale. 4. If the evidence indicates that the Appellant has a qualifying period of service between 1991 and 1992 then, obtain a VA medical opinion from an appropriate clinician regarding the Appellant's lumbar strain, cervical spine arthritis, and right shoulder impingement syndrome. The examiner must opine: (a.) Whether it is at least as likely as not the lumbar strain, cervical spine arthritis, and/or right shoulder impingement syndrome are etiologically related to Appellant's claimed injury in OCS from June 1991 to March 1992, or as to the spine disabilities, proximately due to or aggravated by pes planus. i. Address the Appellant's private treatment provider which states that the Appellant's disabilities of the lumbar spine, cervical spine, and right shoulder are related to her military injury in 1991. (b.) For each opinion provide a complete medical rationale. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.