Citation Nr: 21040240 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-02 913 DATE: July 2, 2021 REMANDED Entitlement to a left ankle disorder is remanded. Entitlement to a right ankle disorder is remanded. Entitlement to a left foot disorder is remanded. Entitlement to a right foot disorder is remanded. Entitlement to asthma (claimed as a respiratory disorder) is remanded. Entitlement to a right shoulder disorder is remanded. Entitlement to a right wrist disorder is remanded. Entitlement to a left-hand disorder is remanded. Entitlement to a right-hand disorder is remanded. Entitlement to a lumbar spine disorder is remanded. Entitlement to a cervical spine disorder is remanded. Entitlement to a right hip disorder is remanded. Entitlement to a left hip disorder is remanded. Entitlement to a left knee disorder is remanded. Entitlement to a right knee disorder is remanded. REASONS FOR REMAND The Veteran had active military service from June 1968 to June 1971. These issues are on appeal from a February 2015 rating decision. On his January 2017 VA Form 9, the Veteran requested a Board hearing. A Board hearing was scheduled for September 2019, but the Veteran withdrew his hearing request in September 2019 prior to the hearing. In October 2019, the Board remanded these claims for additional development and consideration. While further delay is regrettable, the Board finds further clarification is required prior to a decision on merits in order to afford the Veteran every possible opportunity to substantiate these claims. The October 2019 Board remand requested examinations and opinions regarding any diagnosed disorders of the bilateral hands, feet, ankles, knees, hips, right wrist, right shoulder, lumbar spine, cervical spine, and any respiratory disorders, to include asthma. The Veteran was scheduled for the requested examinations in December 2019. The Board also noted the Veteran's service treatment records (STRs) document a pulled back muscle and back pain in September 1968 and October 1968, respectively. His May 1971 exit Report of Medical History also documents shortness of breath, low back pain, and a car accident in 1968. In December 2019, the requested examinations were conducted, and a medical opinion obtained. The December 2019 concluded it was less likely than not that any of the diagnosed musculoskeletal disorders were due to service due to the fact the Veteran's active duty records do not document any chronic or ongoing medical issues within one year from discharge. The examiner also stated that the Veteran's active duty medical records do not document a chronic back issue arising from his in-service car accident or complaints of back pain. Similarly, regarding the claimed respiratory disorder, the examiner failed to indicate a diagnosis of asthma on the December 2019 disability benefits questionnaire. Then, the VA examiner also concluded it was less likely than not that the claimed disorder is due to the Veteran's military serivce. The examiner noted that, although there is a notation in the Veteran's exit exam about his complaint of shortness of breath, there is no documentation of objective evidence of a respiratory condition during service or afterwards to serve as nexus for service connection. The Board finds this opinion internally inconsistent given the failure A June 2020 addendum opinion was obtained. At that time, the examiner further noted that all the musculoskeletal conditions were acute and self-limiting and resolved, including the back complaints from the car accidents. As for a respiratory disorder, the examiner stated that the complaint of shortness of breath was a "complaint in passing," and there is no documentation of objective evidence of a respiratory condition during service or afterwards to link to this complaint to serve as nexus for service connection. The examiner again failed to rectify the internal inconsistencies of the December 2019 VA examination that failed to indicate a diagnosis of asthma, but yet still provided a negative opinion. Moreover, the Veteran's VA treatment records very clearly document the use of medication for "asthma symptoms" and the notation of a working diagnosis of asthma, neither of which were addressed by the examiner in either the December 2019 or the June 2020 opinions. See June 2015 VA treatment record and CAPRI medication list. The Board finds that the December 2019 and June 2020 opinions are conclusory in nature. Specifically, the examiner's opinions are all based on the lack of in-service documentation and he does not address the Veteran's statements of widespread pain on a continuing basis since service. Further, while acknowledging the noted back complaints and shortness of breath, the examiner then concludes they were acute or passing, but does not provide a rationale for these opinions. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) As such, the Board finds addendum opinions are required for the issues on appeal. The matters are REMANDED for the following action: 1. Obtain any additional VA or private treatment records relevant to the matters on appeal that are not currently associated with the claims file. 2. Then, obtain an addendum opinion from a different VA examiner than who authored the December 2019 and June 2020 etiological opinions regarding each diagnosed musculoskeletal disorders. A new examination(s) is not requested; however, if the RO determines an examination(s) is needed in order to address the questions below, then the appropriate actions must be undertaken. This determination is left to the discretion of the RO. (a.) The VA examiner is asked to provide an opinion for each disorders, diagnosed as: 1) arthritis of the right and left knees; 2) right shoulder strain; 3) right wrist sprain; 4) lumbar spine strain; 5) arthritis of the right and left hands; 6) cervical spine strain; 7) arthritis of the right and left hips; 8) right and left ankle strains; and, 9) hallux valgus of the left foot, and arthritis of the right and left feet, as to whether it is at least as likely as not the disorders began during or are etiologically related to his active duty service. (b.) For each diagnosis of arthritis (bilateral feet, bilateral hands, bilateral hips, bilateral knees), the examiner must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) The examiner MUST comment on whether the Veteran's diagnosed musculoskeletal disorders are the type of disease or injury that would be expected to occur following a car accident (as noted on the May 1971 Report of Medical History). (d.) As it pertains specifically to the diagnosed lumbar spine disorder, the examiner MUST comment on the documented in-service back pain in September 1968, October 1968, and May 1971, and the 1968 car accident. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. This includes the Veteran's reports of experiencing pain since his military service. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST "CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO." SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. A complete rationale for each opinion is required. Citation to accepted medical literature and principles would be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 3. Obtain an addendum opinion from a different VA examiner than who authored the December 2019 and June 2020 etiological opinions whether the Veteran's currently diagnosed asthma is at least as likely as not related to in-service injury, event, or disease, to include the report of shortness of breath on his May 1971 exit Report of Medical History. The examiner MUST comment on the Veteran's May 1971 report of shortness of breath and the post-service use of medication and notation as to a working diagnosis of asthma in the VA treatment records. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST "CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO." SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. A complete rationale for each opinion is required. Citation to accepted medical literature and principles would be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. (Continued on the next page) 5. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION (Continued on the next page) K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.