Citation Nr: 21041566 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-57 830 DATE: July 9, 2021 REMANDED The issue of entitlement to service connection for a left shoulder disability, to include as secondary to service-connected disabilities, is remanded. The issue of entitlement to service connection for a left wrist disability, to include as secondary to service-connected disabilities, is remanded. The issue of entitlement to service connection for a right wrist disability, to include as secondary to service-connected disabilities, is remanded. The issue of entitlement to service connection for a left hip disability, to include as secondary to service-connected disabilities, is remanded. The issue of entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities, is remanded. The issue of entitlement to service connection for a right ankle disability, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1978 to August 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO) rating decisions dated in February 2013 and May 2013. This case was previously before the Board in February 2019, when the Board resolved 14 issues with final appellate determinations. At that time, the Board also reopened the six service connection issues remaining on appeal based upon a finding of receipt of new and material evidence and then remanded those six issues for additional development. All six of those issues have now returned to the Board and been reassigned to the undersigned Veterans Law Judge (VLJ) for further appellate review. 1. The issue of entitlement to service connection for a left shoulder disability, to include as secondary to service-connected disabilities, is remanded. 2. The issue of entitlement to service connection for a left wrist disability, to include as secondary to service-connected disabilities, is remanded. 3. The issue of entitlement to service connection for a right wrist disability, to include as secondary to service-connected disabilities, is remanded. 4. The issue of entitlement to service connection for a left hip disability, to include as secondary to service-connected disabilities, is remanded. 5. The issue of entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities, is remanded. 6. The issue of entitlement to service connection for a right ankle disability, to include as secondary to service-connected disabilities, is remanded. The prior February 2019 Board remand determined that a new VA medical opinion was necessary because the existing VA medical opinions of record at that time were inadequate to inform appellate review of the issues remaining on appeal. Unfortunately, the resulting March 2019 VA examination report with medical opinions does not enable the Board to complete fully informed appellate review at this time. To begin with, the March 2019 VA medical opinions did not address the medical questions in this case with use of the correct standard for service connection determinations, and in this regard also did not comply with the directives of the Board's February 2019 remand that required use of the correct standard. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A remand by the Board confers on the Veteran claimant, as a matter of law, the right to compliance with the remand orders.). The March 2019 VA medical opinions of record in this case are each repeatedly presented in terms of pertinent nexus being "less than likely." This could lead to a different outcome (less favorable to the Veteran) than the required standard of "at least as likely as not." (Even with the most accommodating possible interpretation of "less than likely," there remains a scenario in which a 50 percent probability of nexus would fail to satisfy this standard while it would satisfy the correct "at least as likely as not" standard to support entitlement to service connection.) The March 2019 VA medical opinions state that "It is less than likely" that any of the Veteran's disabilities on appeal are "incurred in or caused by service," "caused by another SC [service-connected] condition," or "aggravated beyond natural progression by another SC condition." Furthermore, rationales presented for pertinent medical opinions contain contradictory statements on elements of the claims, further complicating the Board's effort to read the contents of the medical opinions in a fashion allowing them to provide an adequate basis for final appellate review. Regarding the right and left wrist disabilities, the medical opinion's rationale states: "it is highly unlikely that the Veteran's current bilateral wrist condition would not be caused by the Veteran's SC conditions." Regarding the right and left ankle disabilities, the medical opinion's rationale states: "it is highly unlikely that the Veteran's current bilateral ankle condition would not be caused by the Veteran's other SC conditions." Regarding the left hip disability, the medical opinion's rationale states: "it is highly unlikely that the Veteran's current left hip condition would not be caused by the Veteran's other SC conditions." Context suggests that each of these statements may have been intended to convey the opposite determination relative to that which their phrasing actually states. However, given that the presented medical opinions on these issues each apply the incorrect probability standard, and that the Board would be relying upon the examiner's discussion of rationale in order to find a reading of the opinions allowing for adequately informed appellate review, the self-contradictory statements in critical portions of the discussions of rationale with further erroneous phrasing is too problematic for these opinions in their current state to serve as the basis for final and conclusive appellate determinations of all of the Veteran's claims. With regard to the left shoulder issue, the Board has carefully considered whether the March 2019 VA medical opinion in its current state can support final appellate review of this matter. The Board has considered this carefully in light of the fact that the presented rationale for the left shoulder opinion does not contain one of the double-negative sentences complicating the rationales in the opinions addressing the other issues ("It is highly unlikely that the Veteran's current [disability] would not be caused by ...."). The discussed rationale provides statements regarding some of the service connection theories that potentially demonstrate an appropriate standard of determination ("aggravation of the left shoulder condition is very unlikely...."), but it does not provide such statements for all applicable service connection theories pertinent to this issue. The Board finds that a remand is necessary to obtain an addendum / supplemental medical opinion that remedies the non-compliance with the prior Board remand directives and applies the correct probability standard necessary to inform determinations of entitlement to service connection. Furthermore, the Board notes that the March 2019 VA medical opinions report that "At current VAE the Veteran reported he believes his left shoulder is not related to service," "he believes his wrists are not related to service," and "he believes his left hip is not related to service." The VA examination report again repeats the comment regarding the Veteran believing the "left hip" disability being unrelated to service in the midst of a medical opinion that otherwise addresses the Veteran's bilateral ankle disabilities. This is accompanied in the ankle disability opinion by additional comments about the "etiology of the cause of the current left hip DJD" and analysis of the "left hip condition" and factors in "the Veteran's development of the hip DJD" that appear to suggest further errors in the preparation of the medical opinions that confuse the Board's efforts to read and rely upon their contents. Clarification is sought to facilitate informed final appellate review. To the extent that the VA medical opinion indicates that the Veteran "reported he believes his [disabilities are] not related to service," these comments appear to be significant to the VA medical opinion's analysis, but the VA medical opinion does not address the Veteran's lay testimony indicating that he recalls pertinent symptomatology during service. As the VA medical opinions repeatedly state: "the diagnosis and etiology determination of the condition cannot be determined by lay observation." The March 2019 VA medical opinions do not indicate that the Veteran has revised or withdrawn his prior testimony indicating that he recalls pertinent in-service symptomatology, only that the Veteran may not believe that his disabilities are related to service (which is itself a departure from the Veteran's prior statements, and is not a determination that the Veteran's lay statements are competent to make.). It is notable in this case that the Veteran served on active duty for a period of more than 22 years, concluding on August 31, 2000, and he filed a claim asserting entitlement to service connection for bilateral ankle disabilities, bilateral wrist disabilities, a left hip disability, and a shoulder disability less than 2 weeks later, as acknowledged by an April 2001 RO rating decision. The Veteran has asserted the presence of pertinent symptomatology during service. Furthermore, an October 2016 VA examination report documents that the Veteran "reports insidious onset of pain to Left shoulder during service." An October 2016 VA examination report also documents that the Veteran reported "he does not recall an initial injury occurring to either ankle but states his [bilateral] ankle pain started in service roughly 1980." An October 2016 VA examination report notes (accurately) that a January 2001 VA examination report, shortly following service and in connection with his compensation claim filed almost immediately following service, shows that the Veteran described "symptoms in the wrist[s] with both of them popping," and "he had numerous strains in PT [physical training during service]...." An April 2001 RO rating decision acknowledges that the Veteran "had complaints of wrist pain 8/5/99" and that "VA Examination, VA Medical Center at Dallas, dated January 24, 2001, revealed the veteran had mild complaints of wrist pain and popping." Furthermore, the Veteran's service treatment records document that the Veteran reported "ankle pain for several years" during service in December 1997. An August 1999 service treatment record shows the Veteran described "L hip / abdominal ... sharp pain." The March 2019 VA medical opinions acknowledge some of the lay reports and in-service indications of pertinent in-service symptomatology, but do not adequately address the raised questions of whether the lay and medical indications of in-service symptomatology present a basis for finding that the current disabilities are at least as likely as not etiologically linked to the Veteran's military service. The VA medical opinion must consider the Veteran's description of recurring symptomatology and his descriptions of his pertinent history. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (holding that the duty to assist requires that an examiner address the veteran's lay statements to provide the Board with an adequate medical opinion). The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disabilities on appeal. Please ask the Veteran to provide the releases necessary for VA to secure any adequately identified private treatment records that the Veteran may wish VA to assist him in obtaining for the record. 2. After the record is determined to be complete, the AOJ should arrange for the Veteran's claims-file to be forwarded to a VA clinician for clarifying addenda / opinions regarding the nature and etiology of the Veteran's disabilities of the right and left wrists, right and left ankles, left shoulder, and left hip. A new examination should only be performed if the medical professional providing the opinions finds one is necessary. The clinician must review the Veteran's claims file, and based on such review (and, if necessary, examination of the Veteran), provide opinions responding to the questions below. Clarification / addendum opinions are necessary because the March 2019 opinions applied an incorrect determination standard. The March 2019 VA medical opinions were prepared in response to requests seeking determinations regarding whether certain suggested etiological nexuses are "at least as likely as not" (a 50 percent or greater probability) existent. However, the March 2019 VA medical opinions responded to each query by repeatedly asserting that the suggested etiological nexuses are "less than likely." In addition, for all but one of the queries, each March 2019 VA medical opinion presents a rationale with at least one statement that appears to accidentally contradict other elements of the opinion due to potentially erroneous phrasing; for example, "It is highly unlikely that the Veteran's current [disability] would not be caused by ....," when other parts of the opinion suggest that the referenced causation is not considered likely. Please provide clarification and supplementation of the March 2019 VA medical opinions on the following queries to ensure that the correct determination standard is applied ("at least as likely as not (a 50 percent degree of probability or greater)"), and with attention to correcting any error / internal contradiction presented in the prior opinions' statements containing the phrase "It is highly unlikely that the Veteran's current [disability] would not be caused by....": (a.) Left Shoulder: After reviewing the evidence of record, including the findings and opinions of the August 2012 and October 2016 VA examiners, and based on a comprehensive evaluation of the Veteran's claimed condition, the examiner must opine whether the Veteran's left shoulder disability is at least as likely as not (a 50 percent degree of probability or greater) related to an in-service injury, event, or disease. Please explain whether the Veteran's assertions attributing his current disability to in-service symptomatology in the joint (in light of indications of in-service symptomatology including in the service treatment records and the Veteran's asserting the existence of pertinent impairment when filing a claim for compensation within two weeks of separation from service), in the context of his medical history, align with how such disability is medically known to develop. (b.) Left Shoulder: The examiner must also opine as to whether the left shoulder disability is at least as likely as not (a 50 percent degree of probability or greater) proximately due to any of the Veteran's previously service-connected disabilities. (c.) Left Shoulder: The examiner must also opine as to whether the left shoulder disability is at least as likely as not (a 50 percent degree of probability or greater) aggravated (increased in severity) by any of the Veteran's previously service-connected disabilities. (d.) Left Hip: After reviewing the evidence of record, including the findings and opinions of the August 2012 and October 2016 VA examiners, and based on a comprehensive evaluation of the Veteran's claimed condition, the examiner must opine whether the Veteran's left hip disability is at least as likely as not (a 50 percent degree of probability or greater) related to an in-service injury, event, or disease. Please explain whether the Veteran's assertions attributing his current disability to in-service symptomatology in the joint (in light of indications of in-service symptomatology including in the service treatment records and the Veteran's asserting the existence of pertinent impairment when filing a claim for compensation within two weeks of separation from service), in the context of his medical history, align with how such disability is medically known to develop. (e.) Left Hip: The examiner must also opine as to whether the left hip disability is at least as likely as not (a 50 percent degree of probability or greater) proximately due to any of the Veteran's previously service-connected disabilities. (f.) Left Hip: The examiner must also opine as to whether the left hip disability is at least as likely as not (a 50 percent degree of probability or greater) aggravated (increased in severity) by any of the Veteran's previously service-connected disabilities. (g.) Left Wrist: After reviewing the evidence of record, including the findings and opinions of the August 2012 and October 2016 VA examiners, and based on a comprehensive evaluation of the Veteran's claimed condition, the examiner must opine whether the Veteran's left wrist disability is at least as likely as not (a 50 percent degree of probability or greater) related to an in-service injury, event, or disease. Please explain whether the Veteran's assertions attributing his current disability to in-service symptomatology in the joint (in light of indications of in-service symptomatology including in the service treatment records and the Veteran's asserting the existence of pertinent impairment when filing a claim for compensation within two weeks of separation from service), in the context of his medical history, align with how such disability is medically known to develop. (h.) Left Wrist: The examiner must also opine as to whether the left wrist disability is at least as likely as not (a 50 percent degree of probability or greater) proximately due to any of the Veteran's previously service-connected disabilities. (i.) Left Wrist: The examiner must also opine as to whether the left wrist disability is at least as likely as not (a 50 percent degree of probability or greater) aggravated (increased in severity) by any of the Veteran's previously service-connected disabilities. (j.) Right Wrist: After reviewing the evidence of record, including the findings and opinions of the August 2012 and October 2016 VA examiners, and based on a comprehensive evaluation of the Veteran's claimed condition, the examiner must opine whether the Veteran's right wrist disability is at least as likely as not (a 50 percent degree of probability or greater) related to an in-service injury, event, or disease. Please explain whether the Veteran's assertions attributing his current disability to in-service symptomatology in the joint (in light of indications of in-service symptomatology including in the service treatment records and the Veteran's asserting the existence of pertinent impairment when filing a claim for compensation within two weeks of separation from service), in the context of his medical history, align with how such disability is medically known to develop. (k.) Right Wrist: The examiner must also opine as to whether the right wrist disability is at least as likely as not (a 50 percent degree of probability or greater) proximately due to any of the Veteran's previously service-connected disabilities. (l.) Right Wrist: The examiner must also opine as to whether the right wrist disability is at least as likely as not (a 50 percent degree of probability or greater) aggravated (increased in severity) by any of the Veteran's previously service-connected disabilities. (m.) Left Ankle: After reviewing the evidence of record, including the findings and opinions of the August 2012 and October 2016 VA examiners, and based on a comprehensive evaluation of the Veteran's claimed condition, the examiner must opine whether the Veteran's left ankle disability is at least as likely as not (a 50 percent degree of probability or greater) related to an in-service injury, event, or disease. Please explain whether the Veteran's assertions attributing his current disability to in-service symptomatology in the joint (in light of indications of in-service symptomatology including in the service treatment records and the Veteran's asserting the existence of pertinent impairment when filing a claim for compensation within two weeks of separation from service), in the context of his medical history, align with how such disability is medically known to develop. (n.) Left Ankle: The examiner must also opine as to whether the left ankle disability is at least as likely as not (a 50 percent degree of probability or greater) proximately due to any of the Veteran's previously service-connected disabilities. (o.) Left Ankle: The examiner must also opine as to whether the left ankle disability is at least as likely as not (a 50 percent degree of probability or greater) aggravated (increased in severity) by any of the Veteran's previously service-connected disabilities. (p.) Right Ankle: After reviewing the evidence of record, including the findings and opinions of the August 2012 and October 2016 VA examiners, and based on a comprehensive evaluation of the Veteran's claimed condition, the examiner must opine whether the Veteran's right ankle disability is at least as likely as not (a 50 percent degree of probability or greater) related to an in-service injury, event, or disease. Please explain whether the Veteran's assertions attributing his current disability to in-service symptomatology in the joint (in light of indications of in-service symptomatology including in the service treatment records and the Veteran's asserting the existence of pertinent impairment when filing a claim for compensation within two weeks of separation from service), in the context of his medical history, align with how such disability is medically known to develop. (q.) Right Ankle: The examiner must also opine as to whether the right ankle disability is at least as likely as not (a 50 percent degree of probability or greater) proximately due to any of the Veteran's previously service-connected disabilities. (r.) Right Ankle: The examiner must also opine as to whether the right ankle disability is at least as likely as not (a 50 percent degree of probability or greater) aggravated (increased in severity) by any of the Veteran's previously service-connected disabilities. The examiner must explain the rationale for all opinions and conclusions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The examiner should take into consideration that the Veteran is competent to report symptom experiences; other witnesses are competent to report observable symptoms. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barone, 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.