Citation Nr: 21042408 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 12-01 811 DATE: July 13, 2021 REMANDED Service connection for a left shoulder disability is remanded. Service connection for a left hand disability is remanded. Service connection for a right hand disability is remanded. Service connection for a right arm disability is remanded. Service connection for a left knee disability is remanded. Service connection for a right leg disability is remanded. Service connection for a bilateral foot disability (to include heel spurs) is remanded. Service connection for a bilateral eye disability is remanded. Service connection for sinusitis is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1995 to December 1999 and from August 2002 to July 2003. These claims are on appeal from a February 2011 rating decision. These matters were previously before the Board of Veterans' Appeals (Board) in October 2014 and July 2019, and were remanded for additional development. Although the Board regrets the additional delay, another remand is required for additional development and readjudication. The Board notes that service connection for a right knee and a right shoulder have been granted since the last Board remand in a January 2021 rating decision. Initially, in its most recent remand, the Board stated that VA had attempted to obtain the Veteran's outstanding National Guard records from, among other sources, the Alabama National Guard. See January 2019 Correspondence. No response was received from the Alabama National Guard. In this regard, the Board notes that National Guard records must be requested from the appropriate state's Adjutant General. Thus, on remand, the Agency of Original Jurisdiction (AOJ) must once again attempt to obtain the Veteran's outstanding National Guard records in accordance with VA regulation from the Alabama Adjutant General. Related to this request, the Board notes that in February 2021 correspondence the Veteran indicated he wished to present testimony at a hearing if his National Guard records could not be located. If these records are still unable to be obtained on remand, the Veteran will be scheduled for a hearing when his case returns to the Board unless he decides to withdraw this request; notably, the AOJ does not have jurisdiction to schedule hearings before the Board. Regardless of whether the aforementioned National Guard records are received, new opinions pertaining to the claims for the right leg, left knee, left shoulder, bilateral feet, bilateral eyes, and sinusitis are required. Specifically, the opinions pertaining to the right leg and left knee did not consider the diagnosis of restless leg syndrome in the Veteran's VA treatment records or the diagnosis of bilateral patellofemoral syndrome as noted in the most recent examination. Further, the opinion regarding the left knee is based on a lack of documented left knee injuries during service and does not consider the Veteran's lay statements. The opinion relating to the left shoulder indicates that there are no other diagnoses pertaining to the shoulder other than the Veteran's already service-connected carpal tunnel syndrome and radiculopathy; however, the examination also notes a diagnosis of a left shoulder strain in 2018 and left shoulder arthritis in 2019 yet no opinions pertaining to these diagnoses were rendered. The opinion regarding the Veteran's bilateral feet indicated that the Veteran had bilateral pes planus and that there was no evidence of bilateral heel spurs; there is no opinion relating to the Veteran's pes planus, which was noted to be preexisting on his March 1995 entrance examination. The opinion addressing the Veteran's claim for sinusitis indicates that the Veteran does not have a current diagnosis of this disorder, yet VA treatment records show he was treated for sinus symptoms with an antihistamine; accordingly, an opinion which addresses his sinus symptoms must be obtained. Finally, although the Board previously ordered a new opinion relating to the Veteran's claim for a bilateral eye disorder (diagnosed as dry eyes), one was not obtained. If, and only if, National Guard records are received, new opinions must be obtained pertaining to the Veteran's claims for a bilateral hand disability and a right arm disability which consider the newly received evidence. Turning to the issue of entitlement to TDIU, the most recent VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) of record is dated July 2010, more than 10 years ago. In the July 2019 remand, the Board instructed the AOJ to request an updated form from the Veteran, which was accomplished by way of a November 2019 letter. The Veteran did not respond to that letter and it was not returned as undeliverable. While this case is in remand status, the AOJ should afford the Veteran another opportunity to complete and return this form. The Veteran is informed that if he does not respond to a request to submit this required form within one year of the date of VA's request, his claim will be considered abandoned. See 38 C.F.R. § 3.158. While this case is in remand status, all outstanding VA treatment records must be obtained and associated with the evidence of record before the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992). (CONTINUED ON NEXT PAGE) The Veteran and his representative are also informed they have the right to submit additional evidence and argument on these matters while they are in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Contact the Alabama Adjutant General to request the Veteran's outstanding National Guard records. The AOJ must continue to request these records until they are received, or until it is determined that they are unavailable/further attempts to obtain them would be futile. 2. Obtain all outstanding VA treatment records and associate them with the evidence of record before the Board. 3. Contact the Veteran and request that he complete and return to VA an updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). Thereafter, the AOJ should undertake any necessary development to verify any employment. 4. Following completion of steps 1-2, if and only if, additional National Guard records are received, obtain addendum opinions relating to the Veteran's claims for service connection for (a) left and right hand disabilities; and (b) a right arm disability. The medical professional must obtain from the Veteran and record in the opinions a complete description regarding the onset and continuity of symptoms, which may be accomplished through the ACE telephone process. Following a review of the evidence, and with consideration of the Veteran's statements, please provide the following opinions: (a) Is it at least as likely as not (50 percent probability or higher) that the Veteran's left hand arthritis began during, manifested within one year of separation of (by July 2004), or is otherwise related to his active duty service? Why or why not? (b) Is it at least as likely as not (50 percent probability or higher) that the Veteran's right hand arthritis began during, manifested within one year of separation of (by July 2004), or is otherwise related to his active duty service? Why or why not? (c) Is it at least as likely as not (50 percent probability or higher) that the Veteran has a right arm disability which began during or is otherwise related to his active duty service? Why or why not? The medical professional is informed of the following: A negative opinion based on a lack of treatment or diagnosis in service will be deemed inadequate; the opinion must consider and discuss the Veteran's reports of the onset and continuity of symptoms. A complete and separate rationale for each opinion is required. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 5. Following completion of steps 1-2, regardless of whether outstanding National Guard records are received, obtain the below addendum opinions. The medical professional must obtain from the Veteran and record in the opinions a complete description regarding the onset and continuity of symptoms, which may be accomplished through the ACE telephone process. Following a review of the evidence, and with consideration of the Veteran's statements, please provide the following opinions: (a) Is it at least as likely as not (50 percent probability or higher) that the Veteran's left shoulder arthritis began during, manifested within one year of separation of (by July 2004), or is otherwise related to his active duty service? Why or why not? (b) Is it at least as likely as not (50 percent probability or higher) that the Veteran's left shoulder strain began during or is otherwise related to his active duty service? Why or why not? (c) Is it at least as likely as not (50 percent probability or higher) that the Veteran's bilateral restless leg syndrome began during or is otherwise related to his active duty service? Why or why not? (d) Is it at least as likely as not (50 percent probability or higher) that the Veteran's left knee patellofemoral syndrome began during or is otherwise related to his active duty service? Why or why not? (e) Is it at least as likely as not (50 percent probability or higher) that the Veteran's right knee patellofemoral syndrome began during or is otherwise related to his active duty service? Why or why not? (f) Is it at least as likely as not (50 percent probability or higher) that the Veteran's sinus symptoms began during or are otherwise related to his active duty service? Why or why not? This opinion must be provided regardless of whether there is a formal diagnosis of sinusitis. (g) Is there clear and unmistakable evidence (obvious, manifest) that the Veteran's bilateral pes planus was not aggravated by his first period of active duty service (April 1995 to December 1999)? Why or why not? (h) Is it at least as likely as not (50 percent probability or higher) that the Veteran's bilateral pes planus began during or is otherwise related to his second period of active duty service (from August 2002 to July 2003? Why or why not? For the purposes of this opinion, the medical professional must presume the Veteran did not have preexisting bilateral pes planus at entry to his second period of active service. (i) Is it at least as likely as not (50 percent probability or higher) that the Veteran's bilateral dry eyes began during or are otherwise related to his active duty service? Why or why not? The medical professional is informed of the following: A negative opinion based on a lack of treatment or diagnosis in service will be deemed inadequate; the opinion must consider and discuss the Veteran's reports of the onset and continuity of symptoms. (CONTINUED ON NEXT PAGE) If the Veteran's National Guard records remain outstanding, heightened consideration must be given to the Veteran's lay statements. A complete and separate rationale for each opinion is required. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.