Citation Nr: 21039876 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-19 610A DATE: July 1, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a gastrointestinal disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2011 to October 2012. The Veteran's awards and decorations for his service includes a Combat Action Badge. 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) Muskogee, Oklahoma. Jurisdiction of this appeal is currently with the RO in Wichita, Kansas. This case was most recently before the Board in January 2021, 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. Service Connection Claims As noted above, the Veteran's claims were most recently before the Board in January 2021. Specifically, the January 2021 Board remand directed the AOJ to obtain an addendum VA opinions in order to obtain addendum VA opinions as to the nature and etiology of the Veteran's claims. Specifically, the January 2021 Board remand noted that the October 2020 VA examiner had found no objective diagnosable conditions upon examination; however, the examiner did not address the above-mentioned questions due to the Veteran's Persian Gulf War service, nor did he reconcile his negative findings as specifically requested by the Board. Rather, the examiner speculated that "perhaps a gulf war syndrome is appropriate," given the Veteran's complaints and presentation after deployment. Therefore, the January 2021 Board remand found that an addendum opinion is needed on remand to ensure substantial compliance with the Board's prior remand. Stegall v. West, 11 Vet. App. 268 (1998). The requested VA examination was afforded in April 2021. At that time, the examiner opined the Veteran's claimed disorders were less likely than not incurred in or caused by service. With regard to the Veteran's back disorder, the examiner could not diagnose scoliosis based on Disability Benefit Questionnaires (DBQs). With regard to the Veteran's knees, ankle, and gastrointestinal disorders, the examiner stated there were no diagnoses for such claimed conditions. The examiner noted that although the service treatment records showed joint pain, this would not guarantee a current diagnosis unless a recent DBQ provided one. The examiner found there were no diagnoses of the back, knees, right ankle, or a gastrointestinal disorder. Then, the examiner inexplicably stated that "impairment associated with the back, right knee, left knee, right ankle, and gastrointestinal tract are related to Gulf War service as a 1 An Undiagnosed Illness," and referred to the rationale provided in section 3. However, section 3 states "there were no diagnoses on all available disability benefits questionnaires available for review, and therefore the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness." No rationale was provided, and for all remaining questions, the examiner stated "N/A." The Board finds the April 2021 VA contradictory etiology opinions incomplete and inadequate to decide the claims. In this regard, the opinions provided essentially no information nor responses to the questions outlined by the January 2021 Board remand directives. In that regard, the April 2021 VA examiner failed to reconcile the findings of the diagnoses found in the June 2013 private report and August 2015 VA treatment record; did not adequately address the Veteran's statements and contentions regarding the onset and continuity of his symptoms; did not address whether the Veteran's disability pattern was an undiagnosed illness, a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, a diagnosable but medically unexplained chronic multisymptom illness of unknown pathophysiology, a diagnosable chronic multi-symptom illness with a partially explained etiology and pathophysiology, or a disease with a clear and specific etiology and diagnosis; and did not provide supporting rationale for any conclusions reached. Essentially, the VA examiner found there were no diagnoses of the back, knees, right ankle, and gastrointestinal and provided no further information, akin to the October 2020 VA examination found inadequate by the January 2021 Board. Therefore, the Board finds the April 2021 VA addendum opinions incomplete to decide the claims. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. See D'Aries, 22 Vet. App. at 105; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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 his 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. Then obtain an addendum opinion from an examiner other than the September 2014, October 2020, and April 2021 VA examiners, preferably a physician, addressing the etiology of the Veteran's lumbar spine, bilateral knee, right ankle, and gastrointestinal disorders. Further physical examination is left to the discretion of the examiner. The entire claims file must be made available to and reviewed by the examiner. After a review of the claims file, the examiner should address the following: (a) Please indicate whether the Veteran's lumbar spine, right knee, left knee, right ankle, and gastrointestinal symptoms are attributable to a known clinical diagnosis, and if so, identify the same. If diagnoses of lumbar spine degenerative joint disease and osteoarthritis, scoliosis, bilateral knee post traumatic residual degenerative joint disease and chronic sub patellar bursitis, right ankle post traumatic residual degenerative joint disease and chronic sprain, and gastroesophageal reflux (GERD) are not warranted, please reconcile these findings with the diagnoses of the same in the June 2013 private report and August 2015 VA treatment record. (b) If a diagnosis of GERD is warranted, please determine whether GERD is a functional gastrointestinal disorder or a structural gastrointestinal disease. (c) If a current diagnosis is not present, does the Veteran nevertheless have any functional impairment in the lumbar spine, right knee, left knee, right ankle, and gastrointestinal tract related to pain? (d) If a diagnosis of scoliosis is warranted, please determine whether such diagnosis is a congenital defect or disease. (For VA purposes, a defect differs from a disease in that the former is more or less stationary in nature while the latter is capable of improving or deteriorating.) (1) If scoliosis does not have a congenital origin, please address the questions outlined beginning from part (e) below. (2) If scoliosis is identified as a congenital defect, please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran incurred any superimposed disease or injury on such defect during service that resulted in additional disability. If so, please describe the resultant disability. (3) If scoliosis is identified as a congenital disease, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disease was aggravated (worsened beyond natural progression) by service, to include as a result of wearing heavy body armor and equipment. (e) Please provide a medical statement explaining whether the Veteran's disability pattern is: (1) an undiagnosed illness; (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology; (3) a diagnosable but medically unexplained chronic multisymptom illness of unknown pathophysiology; (4) a diagnosable chronic multi-symptom illness with a partially explained etiology and pathophysiology, or (5) a disease with a clear and specific etiology and diagnosis. (f) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern consistent with options (e)(4) or (e)(5) above, (i.e., either a diagnosable chronic multi-symptom illness with a partially explained etiology and pathophysiology or a disease with a clear and specific etiology and diagnosis), then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia (e.g., burn pits, oil fires, sandstorms). (g) If not, is it at least as likely as not (50 percent or greater probability) that any diagnosed disorder or functional impairment associated with the back, right knee, left knee, right ankle, or gastrointestinal tract had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, to include as a result of the documented complaints of back pain therein. See September 2012 Post Deployment Health Assessment. In addressing question (g), the examiner should discuss the Veteran's reports of: (1) back pain from wearing heavy body armor and equipment in service, as well as from a fall (see June 2014 and August 2015 VA treatment records); (2) the onset of abdominal pain since serving in Afghanistan (see July 2013 VA treatment record); (3) ankle pain from running on gravel during service (see June 2018 VA treatment record; and (4) lay statements as to the onset of and continuous symptomatology since service (see January, February, and March 2016 lay statements; see also October 2020 VA examination reports). Please assume the Veteran's statements are true and determine whether a nexus relationship is "medically plausible" given the same. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 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.