Citation Nr: 21039938 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 12-19 863 DATE: July 1, 2021 ISSUES 1. Entitlement to service connection for right shoulder degenerative joint disease, to include as secondary to lumbar degenerative disc disease (DDD). 2. Entitlement to service connection for bilateral pes planus with plantar fibroma, to include as secondary to lumbar degenerative disc disease (DDD). REMANDED Entitlement to service connection for right shoulder degenerative joint disease, to include as secondary to lumbar degenerative disc disease (DDD) is remanded. Entitlement to service connection for bilateral pes planus with plantar fibroma, to include as secondary to lumbar degenerative disc disease (DDD) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1984 to January 1987. The case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. By way of background, following the June 2011 rating decision that denied each of the Veteran's claims, the Veteran filed a timely Notice of Disagreement (NOD) in January 2012. He was issued a statement of the case (SOC) in June 2012 and filed a timely VA Form 9 in July 2012. In that VA Form 9, the Veteran requested a hearing. In October 2015 the Veteran gave testimony in a Board hearing before Veterans Law Judge Derek R. Brown. The claims were subsequently remanded for additional development and adjudication in February 2016. In June 2017 the claims were remanded again for an additional hearing. Accordingly, in September 2017, the Veteran gave testimony at a hearing before VLJ Michael A. Pappas. The claims were returned to the Board in February 2018 where it was noted that VA law requires that a VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. As was the case, when two hearings had been held by different VLJs concerning the same issue or issues, the law also requires that the Board assign a third VLJ to decide that issue or issues because a proceeding before the Board must be assigned either to an individual VLJ "or to a panel of not less than three members of the Board." 38 U.S.C. § 7102 (a); 38 C.F.R. § 19.3 ; Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran was asked via notification letter to clarify whether the Veteran would like the opportunity for an additional BVA hearing held before a third VLJ who will be assigned to the panel to decide his appeal. The Veteran was notified that he had 30 days from the date of the letter to respond. The Veteran did not respond, so in February 2018 the Board assigned VLJ K.J. Alibrando to the panel Decision. The claim was then remanded. Following the remand, the claims returned to the Board in January 2020. In that Board Decision, it was determined that there had not been substantial compliance with the February 2018 remand directives. Thus, the claims were again remanded. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The claims have since returned to the Board, and upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives from January 2020. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Following the January 2020 remand however, both VLJ Brown and VLJ Alibrando have since retired their judgeships. Having said that, as per Board policy, because two of the three VLJs who conducted hearings and were part of the earlier panel Decision are no longer employed by the Board, the three-VLJ panel may be dissolved, so long as one VLJ remains who took part in a hearing for the current issues on appeal. Because that is the case in this instance, VLJ Michael A. Pappas will oversee development and adjudication of the Veteran's case, as opposed to the three-VLJ panel. Although the Board regrets the additional delay, the Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to service connection for right shoulder degenerative joint disease, and entitlement to service connection for bilateral pes planus with plantar fibroma, each to include as secondary to lumbar degenerative disc disease (DDD) is remanded. The Veteran has claimed that his right shoulder degenerative joint disease and his bilateral pes planus with plantar fibroma are due to his active duty service. Alternatively, he has argued that those disabilities are aggravated by his service-connected lumbar DDD. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As noted by the Board's prior remand in January 2020, the Veteran was given a VA examination in February 2019, with a subsequent opinion given in June 2019, for each of his disabilities. As a reminder, the Board determined that the February 2019 VA examination and June 2019 opinion were inadequate, as they provided a negative nexus opinion which relied solely on the lack of in-service treatment for either disability, which the Board confirmed to be not fatal to the Veteran's claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion). The Board's finding of inadequacy was extended to both VA examinations: the exam for his bilateral pes planus, as well as his right shoulder disability. As such, the Veteran's claims were remanded for a VA examination. That VA examination occurred in February 2020. The examiner indicated that a review of the Veteran's claims file took place, and the diagnosis of each disability was confirmed. Negative etiological opinions were provided on a direct and secondary basis. Importantly, as it pertains to the etiological opinion for secondary service connection on the basis of aggravation, the examiner offered the following rationale: query is based on the assumption that the Veteran had a right shoulder condition that pre-existed the onset of his lumbar spine condition and asks if the right shoulder condition became aggravated by the later occurrence of the lumbar spine condition. However, this is a false assumption. The lumbar spine condition has been established as a service-connected condition to injury sustained in a jeep accident during active duty, which precedes the onset of the current right shoulder condition. Therefore, this query is rendered moot. Less likely than not that the right shoulder condition was aggravated beyond its natural progression by lumbar DDD. As such, the VA examiner provided a negative etiological opinion. Having said that, the Board notes that the VA examiner gave this negative opinion concerning aggravation based on an inaccurate factual premise. Specifically, the rationale indicates that the question asked is one whereby the shoulder strain "pre-existed the onset of the lumbar spine condition." They then deny that that is the case, and instead confirm that the right shoulder disability came after the lumbar DDD, before indicating that aggravation has not taken place. The Board however has not asked whether or not the shoulder disability had pre-existed the lumbar spine disability. For the purposes of the Veteran's theory of entitlement to service connection on the basis of aggravation, that is not required. Instead, the question asked was "whether it is at least as likely as not that any diagnosed right shoulder disability is aggravated (worsened beyond its natural progress) by the lumbar degenerative disc disease?" The question is not predicated on which disability came first, only if it is at least as likely as not that the shoulder disability has been aggravated by the lumbar DDD. The examiner provided essentially the same opinion, which relied on an inaccurate factual premise, for the bilateral pes planus disability. Thus, the Board's analysis can also be applied to that opinion rendered. An opinion based upon an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993). When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. Importantly, the Board is not currently making a finding as to the adequacy of the other (non-aggravation) opinions given by the February 2020 VA examiner related to direct and secondary service connection. However, as the Veteran's claims rely, in part, on his theory that his bilateral pes planus and his right shoulder disability were aggravated by his service-connected lumbar DDD, a VA addendum opinion on possible aggravation must be given. That VA addendum opinion is again asked whether it is at least as likely as not that either, or both, of the Veteran's disabilities have been aggravated by his service-connected lumbar DDD. Finally, in the Board's January 2020 remand, it noted that the Veteran reported he had received medical treatment through his private employer while he worked with heavy machinery as a maintenance engineer following his active duty service. See September 2017 Hearing Transcript. Thus, the RO was to request those additional records, and the Veteran was reminded that VA's duty to assist is a two-way street, and he cannot wait passively in those situations where his assistance to VA is necessary. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The RO requested that information be provided by the Veteran, as well as the appropriate release for the private medical information in January 2020. The Veteran did submit a signed release for private medical information in February 2020, however the Veteran did not include any required information other than his signature, including all of his identification information. No facilities were listed in the release provided. The RO subsequently rejected the request for medical information as the form was not complete, but the Veteran was not contacted further in an attempt to cure the inadequacy. Thus, as the Board is remanding the claims again, the Veteran should be given one more opportunity to provide such information. The RO should contact the Veteran, indicate which specific information it is that VA is seeking in relation to his claim that identified as private treatment records for his shoulder disability obtained through his private employer and then obtain the appropriate releases. The matters are REMANDED for the following action: 1. Obtain any outstanding and ongoing VA treatment records. Associate such records with the claims file. 2. Contact the Veteran and request that he submit or authorize the release of private treatment records, to include any treatment received through his private employer. As a reminder, the Veteran has testified in September 2017 that he received private treatment through his employer on his right shoulder disability. If a completed authorization form is provided, attempt to obtain the identified records. If the records cannot be located or do not exist, the Veteran should be notified and given an opportunity to provide them. 3. Following the completion of steps 1-2, forward the Veteran's claims file to the same examiner who conducted the February 2020 VA examination for an addendum opinion regarding the nature and etiology of the Veteran's right shoulder degenerative joint disease, and his bilateral pes planus. A further examination should be scheduled if deemed necessary. After a review the Veteran's claims file, to include a copy of this remand, the examiner is asked to opine as to the following: (a.) whether it is at least as likely as not that the diagnosed right shoulder degenerative joint disease is either (1) proximately due to service-connected lumbar DDD, or (2) aggravated beyond its natural progression by service-connected lumbar DDD. The examiner is reminded than an opinion on possible aggravation is required. (b.) whether it is at least as likely as not that the diagnosed bilateral pes planus is either (1) proximately due to service-connected lumbar DDD, or (2) aggravated beyond its natural progression by service-connected lumbar DDD. The examiner is reminded than an opinion on possible aggravation is required. Even if the examiner is unable to determine a baseline severity prior to the aggravation, the examiner is directed to the language of 38 C.F.R. § 3.310 (b) which indicates that the baseline can be measured by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The examiner is reminded that the question is not predicated on which disability came first, only if it is at least as likely as not that the diagnosed disability has been aggravated by the lumbar DDD. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. After the development directed above has been completed, and after any additional development deemed necessary, readjudicate the issues on appeal. If a benefit sought on appeal is not granted, the Veteran and his Representative should be furnished a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.