Citation Nr: 21042088 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-22 376 DATE: July 12, 2021 ORDER For the period on appeal prior to January 14, 2012, a disability rating of 20 percent, but not higher, for the service-connected right shoulder disability, is granted. REMANDED Entitlement to service connection for an upper-gastrointestinal (GI) disorder, to include hiatal hernia, is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a right hand disorder is remanded. Entitlement to service connection for a thoracolumbar spine (low back) disorder is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to service connection for a bilateral ankle disorder is remanded. FINDING OF FACT For the period on appeal prior to January 14, 2012, the service-connected right shoulder disability was manifested by painful motion. CONCLUSION OF LAW For the period on appeal prior to January 14, 2012, the criteria for a rating of 20 percent were met for the service-connected right shoulder disability; the criteria for a rating higher than 20 percent were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from March 1984 to February 1987. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2019 Order of the United States Court of Appeals for Veterans Claims (Veterans Court). The appeal originated from a March 2011 rating decision of the RO in Detroit, Michigan, and from a January 2015 rating decision of the VA Evidence Intake Center in Newnan, Georgia, on behalf of the RO in Detroit, Michigan. In August 2017, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). The Veteran was informed of the basis for the RO's denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. A transcript of the hearing is associated with the claims file. 38 C.F.R. § 3.103. This matter was previously before the Board, and adjudicated in a decision dated March 2018. In that decision, the Board denied each claim. The Veteran appealed that decision to the Veterans Court. In an Order dated January 2019, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's March 2018 decision and remanded these claims back to the Board for development consistent with the Joint Motion. In June 2020, the Board denied each claim. The Veteran appealed that decision to the Veterans Court. In an Order dated February 2021, pursuant to a Joint Motion for Remand, the Veterans Court vacated in part the Board's June 2020 decision and remanded these claims back to the Board for development consistent with the Joint Motion. The parties agreed that the Board's dismissal of entitlement to restoration of a 20 percent rating for a right shoulder disability, and denial of a rating higher than 20 percent for the right shoulder disability for the period since January 14, 2012, should not be disturbed. Entitlement to a disability rating higher than 10 percent for the service-connected right shoulder disability for the period prior to January 14, 2012. In the February 2021 Joint Motion, the parties agreed that the Board failed to correctly apply 38 C.F.R. § 4.59 when it denied a 20 percent rating for the service-connected painful motion under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for the period prior to January 14, 2012. The parties agreed that the Board shall award a 20 percent rating for the service-connected right shoulder rotator cuff tear under Diagnostic Code 5019-5201, effective May 25, 2010. The Board is bound by the findings contained in the Joint Motion, as adopted by the Veterans Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim). Accordingly, a rating of 20 percent is warranted effective May 25, 2010. As this represents the agreement of the parties, no other issues are reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to service connection for an upper GI disorder. In the February 2021 Joint Motion, the parties agreed that a January 24, 2020, VA examination did not contain an opinion as to whether the Veteran's hiatal hernia was due to military service, and that this did not substantially comply with the Board's remand instructions. They agreed that the Board must obtain such an opinion on remand. Entitlement to service connection for a left shoulder disorder. In the February 2021 Joint Motion, the parties agreed that the January 24, 2020, VA examination is inadequate because the examiner's report fails to reflect that she took into account the Veteran's pertinent medical history. The Veteran reported that he injured his left shoulder from falls in the Army. He reported that he "fell off security tower down the stairs and fell on the rifle and had injury the [sic] shoulder -left and left wrist." The parties agreed that the Board implicitly found those statements to be credible. Yet the report reflects "No response provided" when asked to describe the history of the left shoulder condition. The parties agreed that, on remand, the Board must obtain a new VA examination or opinion addressing the Veteran's left shoulder condition and the foregoing pertinent medical history. Entitlement to service connection for a right hand disorder. In the February 2021 Joint Motion, the parties agreed that the January 2020 VA examination report is inadequate as to the right-hand condition because the examiner's report fails to reflect an understanding of the Veteran's relevant medical history. The examiner said that the Veteran had no right-hand diagnoses. She also answered "no" when asked whether imaging studies of the hands were available. Yet, a September 9, 2010, VA radiology report) shows residuals of an "[o]ld fracture first metacarpal." A December 24, 2009, VA radiology report reflects deformity of the first right metacarpal head. The examiner therefore either rendered her opinion without a full understanding of the Veteran's pertinent medical history or failed to explain her rejection of this evidence. The parties agreed that, on remand, the Board must obtain a new VA examination or opinion adequately addressing the Veteran's right-hand condition. Entitlement to service connection for a back disorder. In the February 2021 Joint Motion, the parties agreed that the January 2020 VA examination report is inadequate because the VA examiner failed to furnish a nexus opinion relating to the Veteran's degenerative disc disease. She instead addressed only whether the Veteran's degenerative joint disease was related to service. The parties agreed that, on remand, the Board must obtain a new VA nexus opinion adequately addressing the Veteran's low back condition, to include degenerative disc disease. Entitlement to service connection for a bilateral knee disorder. In the February 2021 Joint Motion, the parties agreed that the January 2020 VA examination is inadequate as to both knees because the examiner's opinion was not based on the Veteran's pertinent medical history, including all of his knee diagnoses. According to a November 27, 2010, VA radiology report, MRI of the right knee detected "preexisting chronic patellofemoral tracking abnormality sequela, predominantly a hypermobility subset." And a June 29, 2011, VA orthopedic surgery consultation reflects a diagnosis of bilateral knee chondromalacia. The VA examiner mentioned none of this, despite noting the Veteran's January 1986 diagnosis of retropatellar pain syndrome. Instead, when asked to "[s]elect diagnoses associated with the claim condition(s)," she identified only bilateral knee arthritis. Her opinion was therefore not based on the Veteran's pertinent medical history, rendering the examination inadequate. The parties agreed that, on remand, the Board must obtain a new VA examination or opinion adequately addressing the Veteran's knees, including all diagnoses. Entitlement to service connection for a bilateral ankle disorder. In the February 2021 Joint Motion, the parties agreed that the January 2020 VA examination report is inadequate given that the examiner said that "imaging studies" had been performed and that arthritis was not documented, yet the examiner failed to specify when these studies were performed or by whom they were performed and to adequately explain her conclusion that the Veteran's "ankle x rays are normal." The record includes a November 23, 2009, VA ambulatory care outpatient follow-up progress note showing that the Veteran had "knee pain and ankle pain -x [sic] rays showed arthritis." An April 20, 2009 VA radiology report also notes degenerative changes in both ankles. The parties agreed that, on remand, the Board must obtain a new VA examination or opinion adequately addressing the Veteran's ankles. Accordingly, these matters are REMANDED for the following action: 1. Schedule an examination of the upper-GI system. The examiner is asked to review the pertinent records, including the August 13, 2010, Upper-GI and Small Bowel Series finding a hiatal hernia. The examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that a hiatal hernia is present; and, if so, whether it is causally or etiologically related to the Veteran's active service. 2. Schedule an examination of the left shoulder. The examiner is asked to review the pertinent records, to include the Veteran's report that he injured his left shoulder from falls in Army; his report that he fell off a security tower, down the stairs, and fell on his rifle, and had injury to the left shoulder and left wrist. The examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any current left shoulder disorder is causally or etiologically related to the Veteran's active service, or is related secondarily to his service-connected right shoulder disability. 3. Schedule an examination of the right hand. The examiner is asked to review the pertinent records, to include a September 9, 2010, VA radiology report) showing residuals of an "[o]ld fracture first metacarpal," and a December 24, 2009, VA radiology report reflecting deformity of the first right metacarpal head. The examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any current right hand disorder is causally or etiologically related to the Veteran's active service. 4. Schedule an examination of the low back. The examiner is asked to review the pertinent records, to include the Veteran's complaint of disc problems and a September 2010 diagnosis of degenerative disc disease. The examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any current low back disorder, to include degenerative disc disease, is causally or etiologically related to the Veteran's active service. 5. Schedule an examination of the knees. The examiner is asked to review the pertinent records, to include a November 27, 2010, VA MRI of the right knee detecting "preexisting chronic patellofemoral tracking abnormality sequela, predominantly a hypermobility subset." And, a June 29, 2011, VA orthopedic surgery consultation reflecting a diagnosis of bilateral knee chondromalacia. And, a January 1986 diagnosis of retropatellar pain syndrome. The examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any knee disorder is causally or etiologically related to the Veteran's active service, to include his description of "excessive running." 6. Schedule an examination of the ankles. The examiner is asked to review the pertinent records, to include imaging reports, a November 23, 2009, VA ambulatory care outpatient follow-up progress note showing that the Veteran had knee pain and ankle pain, and that X-rays showed arthritis. And, an April 20, 2009 VA radiology report also noting degenerative changes in both ankles. The examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any ankle disorder is causally or etiologically related to the Veteran's active service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or worsening as it is to find against causation or worsening. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, the examiner is asked to please provide complete explanations stating why this is so. In so doing, the examiner is asked to explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that the examiner has exhausted the limits of current medical knowledge in providing an answer to that particular question. 7. Readjudicate the remanded claims. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.