Citation Nr: 21040597 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 09-16 824 DATE: July 6, 2021 REMANDED Entitlement to service connection for degenerative joint disease (DJD), i.e., arthritis of the thoracolumbar spine is remanded. Entitlement to service connection for DJD of the left shoulder is remanded. Entitlement to service connection for DJD of the left knee is remanded. Entitlement to service connection for psoriatic arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1965 to March 1970. By way of procedural history, the Veteran's claims for service connection for DJD of his thoracolumbar spine, left shoulder, and left knee were denied by the local regional office (RO) in a May 2008 rating decision. In April 2011, the Board remanded the claims back to the RO (Agency of Original Jurisdiction (AOJ)) to obtain outstanding VA treatment records. These records were obtained and associated with the claims file; however, in September 2013, the Board again remanded the claims but this time instead to obtain medical records from the Social Security Administration (SSA) as well as afford the Veteran a VA compensation examination to determine the etiology of his claimed conditions. SSA's National Records Center response indicated the Veteran's medical records had been destroyed, but he underwent the needed VA examinations for his claimed conditions in November 2013. However, in a November 2015 remand, the Board determined the medical opinions obtained from those VA examinations were inadequate because the examiner had failed to provide any opinion on whether the claimed conditions, including the additional diagnosis of psoriatic arthritis, were related or attributable to the Veteran's military service. An addendum VA medical opinion consequently was obtained in April 2016. The Board then, in turn, requested an expert medical opinion from the Veterans Health Administration (VHA). The designee, an orthopedic surgeon, provided his response opinion in April 2018. However, after considering the VHA medical opinion, the Board remanded the claims in January 2019 finding that the evidence of record had raised the additional issue of entitlement to service connection on a secondary basis and, thus, that still additional medical comment was needed addressing this additionally posited theory of entitlement. Supplemental VA medical comment accordingly was obtained in February 2020, but in November 2020 the Board again remanded these claims because the February 2020 medical opinions were inadequate. Regarding the DJD of the Veteran's thoracolumbar spine, the VA examiner did not address the Veteran's contention that the DJD of his left ankle had caused an altered gait in turn resulting in pain in his thoracolumbar spine and consequent aggravation of this disability by the service-connected disability. The VA examiner also impermissibly had relied on the absence of VA treatment records in determining that the DJD of the Veteran's left shoulder was not attributable to his service. Still yet, the February 2020 VA examiner had concluded the Veteran did not have diagnoses of DJD of his left knee or psoriatic arthritis, directly controverting the medical evidence of record contrarily showing diagnoses of these conditions. Consequently, the Board remanded the claims in November 2020 to obtain still more medical comment addressing these inadequacies. To this end, addendum medical opinions were obtained in March 2021. Unfortunately, however, the Board finds that still more supplemental medical comment is needed prior to adjudicating these claims. Hence, the Board is again remanding them. The March 2021 VA examiner opined that the Veteran's thoracolumbar spine, left knee, left shoulder, and psoriatic arthritis conditions were less likely than not caused or aggravated beyond their natural progression by the service-connected DJD of his left ankle and/or left hand. But, in so concluding, this VA examiner relied on the lack of in-service treatment records and failed to address the Veteran's contention that the DJD of his left ankle caused an altered gait in turn resulting in pain and aggravation of his thoracolumbar spine, left knee, and left shoulder conditions. And, as the prior November 2020 Board remand explained, the mere absence of evidence of treatment for the now claimed disabilities in the Veteran's service treatment records (STRs) and post-service treatment records cannot, alone, be sufficient rationale for providing an unfavorable opinion disassociating these claimed conditions from his service, including secondarily by way of a service-connected disability. See Dalton v. Nicholson, 12 Vet. App. 23 (2007); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). Moreover, a precedent decision of the U. S. Court of Appeals for Veterans Claims (Court/CAVC), Ward v. Wilkie, 31 Vet. App. 233 (2019), basically drew a distinction between 38 U.S.C. § 1153 aggravation (meaning aggravation during service of a pre-existing disability) versus 38 C.F.R. section 3.310(b) aggravation (meaning aggravation since service of a condition by a service-connected disability). In sum, permanent worsening is not required for § 3.310(b) aggravation; also, the worsening contemplated by § 3.310(b) aggravation does not have to be beyond the condition's natural progression (instead, that now only applies to § 1153 aggravation in service). Ward clarified that any incremental increase in disability is sufficient for § 3.310(b) aggravation given the holding in Allen v. Brown, 7 Vet. App. 439 (1995). Furthermore, with regards to the Veteran's claim for service connection for psoriatic arthritis, the March 2021 VA examiner determined that it was at least as likely as not the Veteran has a confirmed diagnosis of the condition, but this VA examiner did not then in turn provide any comment or rationale as to whether the psoriatic arthritis is related or attributable to the Veteran's military service. For these reasons and bases, the Board finds that another remand is warranted to address the deficiencies in the most recent March 2021 VA medical opinions. When VA obtains an opinion, it must ensure it is adequate. See Barr v. Nicolson, 21 Vet. App. 303 (2007). A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order. See Stegall v. West, 11 Vet. App. 268, 270-271 (1998). As there was not acceptable substantial compliance with the Board's prior remand directives, and in accordance with Stegall, still more development of the claims is required. See also Dyment v. West, 13 Vet. App. 141 (1999) (noting that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Accordingly, these claims are REMANDED for the following still additional development and consideration: Obtain still more medical comment (i.e., another supplemental or addendum opinion) concerning the nature and etiology of the DJD of the Veteran's thoracolumbar spine, left knee, and left shoulder, and psoriatic arthritis. Based on the Veteran's statements regarding the history, development and treatment of these claimed disabilities, and after reviewing the relevant evidence in his claims file, including a complete copy of this remand and the Board's prior remands, the examiner is asked to answer the following questions: Is it at least as likely as not (a 50 percent probability or greater) the DJD of the Veteran's thoracolumbar spine, left knee, and left shoulder, and psoriatic arthritis are caused OR aggravated by the already determined to be service connected DJD of his left ankle and/or left hand? *If it is necessary to have the Veteran re-examined to provide this additional comment, then have him re-examined. This is left to the examiner's discretion. *The clinician's rationale regarding this notion of secondary service connection must address the Veteran's contention that the chronic pain owing to the DJD in his left ankle has resulted in an altered gait that, in turn, aggravates the DJD of his thoracolumbar spine and left knee and psoriatic arthritis, and that his left hand condition, including the ulnar neuropathy, in turn aggravates the DJD of his left shoulder. *Permanent worsening is not required for § 3.310(b) aggravation; also, the worsening contemplated by § 3.310(b) aggravation does not have to be beyond the condition's natural progression (instead, that now only applies to § 1153 aggravation in service). See Ward v. Wilkie, 31 Vet. App. 233 (2019). Ward clarified that any incremental increase in disability is sufficient for § 3.310(b) aggravation given the holding in another precedent case, Allen v. Brown, 7 Vet. App. 439 (1995). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the DJD of the thoracolumbar spine, left knee, and left shoulder, and psoriatic arthritis by the service-connected DJD of the left ankle and/or left hand disability. If no finding of causation or aggravation of the claimed conditions by the service-connected left ankle and left hand disabilities, is it at least as likely as not (a 50 percent probability or greater) the DJD of the Veteran's thoracolumbar spine, left knee, and left shoulder, and/or psoriatic arthritis alternatively began during his service from December 1965 to March 1970, within a year of his discharge so by March 1971, or is otherwise related or attributable to his service, i.e., directly or presumptively related to his service? Thus, in total, the Board is requesting opinions concerning (1) direct, (2) presumptive and (3) secondary service connection since all posited theories of entitlement must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). When responding to the question concerning direct service connection, the mere absence of indication of DJD of the thoracolumbar spine, left knee, and left shoulder, and/or psoriatic arthritis in the Veteran's STRs cannot be the sole reason for providing an unfavorable opinion, certainly not in the context of secondary service connection. However, that said, according to 38 C.F.R. § 4.71a, Diagnostic Code 5003, arthritis must be objectively confirmed by X-ray, so it is permissible to consider this as one of several factors in determining when the Veteran first had arthritis in the claimed areas of his body provided there also is explanation of why it is reasonable to expect documentation of specific complaints, etc., in his treatment records. He is competent to report his symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. It is essential the examiner provide rationale, whether responding favorably or unfavorably, preferably citing to specific evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Mukherjee 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.