Citation Nr: 21042428 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-40 628A DATE: July 13, 2021 REMANDED The claim of entitlement to service connection for right knee condition, to include as secondary to service-connected left knee disability, is remanded. The claim of entitlement to service connection for left shoulder condition is remanded. The claim of entitlement to service connection for right shoulder condition is remanded. The claim of entitlement to service connection for fatigue, to include as due to manifestations of undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117, is remanded. REASONS FOR REMAND The Veteran honorably served on active duty from May 1989 to May 1992 and from November 1993 to May 1996. The Veteran served during the Gulf War Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal of January 2015 and September 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the Veteran's claims in August 2020 for further development. The Veteran's claim for post-traumatic stress disorder was granted in January 2021. Therefore, the issue of service-connection for PTSD is no longer before the Board. Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Right knee condition. In December 2020, the Veteran was afforded a new VA examination. The examiner determined that the Veteran had an antalgic gait, a common form of altered gait in patients and refers to an abnormal pattern of walking secondary to pain that ultimately causes a limp whereby the stance phase is shortened relative to the swing phase. The etiology of an antalgic gait relates to a disorder of the lower back or lower extremity. The adaptive alteration of gait avoids placing undue pressure in painful areas and attempts to minimize the recruitment of muscle and joint groups that may be affected by the above process. The examiner went on to determine that altered gait can cause more stress on a knee joint. However, the examiner opined that overuse and extra stress added to the Veteran's right knee over the years was at least as likely as not the cause of his right knee pain. The examiner opined that the Veteran's right knee was not service connected because the evidence of record does not demonstrate that any substantial trauma involving the right knee actually occurred. The examiner opined that the Veteran's claim that he injured his right knees as a result of his parachute jumps, but there was no evidence of substantial trauma to the Veteran's right knee. The examiner failed to provide an opinion as to whether the Veteran's right knee condition was secondary to his service-connected left knee condition. The examiner did not fully address causation and aggravation as it relates to secondary service connection. Furthermore, the examiner failed to consider the impact several parachute jumps (forty-seven according to the Veteran's testimony) would have on his right knee over time. Furthermore, the examiner did not clarify what the cause of the Veteran's altered gait was. The Board finds that the examiner failed to provide adequate rationale and failed to consider the entire claim file as well as failed to comply with the prior remand instructions. 2. Left shoulder condition. 3. Right shoulder condition. The Veteran provided testimony that he had a lot of pain in both shoulders and that he had to carry heavy things on his shoulders, he would take motrin to alleviate the pain. The Veteran reported that pain became worse over the years. The Veteran had left shoulder and right shoulder pain. The December 2020 VA examiner opined that it is less likely than not that the Veteran's left and right shoulder injury was incurred in or caused by the claimed in-service injury event or illness. The examiner opined that the Veteran's shoulder conditions are less likely than not incurred in or caused by the Veteran's parachute jumps during service. The examiner relied on the fact that the Veteran's records do not demonstrate that a left and right shoulder condition existed or was persistent while on active duty resulting from the parachute jumps. The examiner opined that the Veteran would have experienced minor self-limiting conditions at most involving both shoulders which resolved as expected of such illness or injuries. The examiner did not consider the Veteran's testimony that he took motrin to alleviate his pain while in service. The examiner also failed to consider the Veteran's report of ongoing pain, and the possible impact that the Veteran's military occupation specialty / parachute jumping had on the Veteran's left and right shoulder to result in a chronic condition. The Board finds that the examiner failed to provide adequate rationale and failed to consider the entire claim file as well as failed to comply with the prior remand instructions. 4. Fatigue. The December 2020 VA examiner did not comply with the Board's remand instructions. The examiner's opinion was conclusory. The examiner determined that there was no work up or diagnosis of chronic fatigue syndrome noted in the Veteran's c-file. The Veteran reported that he has gulf war syndrome, however the examiner failed to refer the matter to a specialist as instructed in the December 2020 remand instructions. The Board instructed that if any fatigue symptoms are determined not to be associated with a known clinical diagnosis, further specialist examination will be required to address these findings and should be ordered by the primary examiner. That was not the case here. The RO failed to substantially comply with remand instructions. The Board provided specific remand instructions in which the August 2020 VA examiner did not comply. The examiner failed to address the nature and etiology of the Veteran's right knee condition, left and right shoulder condition, and fatigue. The examiner did not address the Veteran's medical history, lay statements, and other risk factors related to the Veteran's military occupational specialty and the 47 parachute jumps the Veteran participated when giving an opinion of whether the Veteran's right knee condition, left and right shoulder condition, and fatigue were service connected. Furthermore, the examiner failed to refer the Veteran's claim to a specialist for a complete work up to determine the nature and etiology of the Veteran's claim for service connection of fatigue. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is necessary to comply with the August 2020 remand instructions. The matters are REMANDED for the following action: 1. Obtain any outstanding medical records from both private and VA facilities. Notate that an attempt to obtain any outstanding private treatment records has been made. Additionally, notate that any additional records from federal facilities are obtained, and if they can't be obtained notate that the attempts were futile. 2. Obtain an addendum medical opinion from an orthopedic physician addressing the nature and etiology of the claimed left and right shoulder disabilities and right knee disability. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and each addendum opinion/examination report should include discussion of the Veteran's documented medical history and assertions. The examiner must address the following: (a) Clearly identify all right shoulder, left shoulder and right knee disabilities to include pain resulting in functional impairment of earning capacity currently present or present at any point pertinent to the current claims. (b) The physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the disability had its onset during service, or is otherwise medically related to the Veteran's service, to include multiple parachute jumps, (and or for the right knee a documented complaint of right knee pain) therein. (c) Determine if the Veteran's right knee disability was at least as likely as not (i.e. 50 percent or greater probability) that the disability was caused or is or has been aggravated (worsened beyond natural progression) by service-connected left knee disability, due to overcompensating for his service-connected left knee disability and putting more weight onto his right knee, as claimed. If aggravation is found, the physician should attempt to quantify the extent of aggravation. The physician is asked to address all relevant medical and other objective evidence of record as well as all lay assertions to include the Veteran's lay statements regarding his in-service right shoulder, left shoulder, and right knee injury due to forty-seven parachute jumps during service, as well as the nature and onset and continuity of symptoms for each disability. 3. Obtain an addendum medical opinion from a qualified physician to determine the source of the Veteran's complaints of chronic fatigue since service. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should include discussion of the Veteran's documented medical history and assertions. The physician should respond to the following: (a) Determine whether the complaints of chronic fatigue are related to a distinct and identifiable disability. If so, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the disability had its onset during service, or is otherwise medically related to the Veteran's service. (b) If the physician determines that the fatigue symptoms are not associated with a known clinical diagnosis, further specialist examinations will be required to address these findings and should be ordered by the primary examiner. (c) The primary examiner should provide the specialist with all examination reports, test results, specify the relevant symptoms that have not been attributed to a known clinical diagnosis and request the specialist determine which of these, if any, can be attributed to a known clinical diagnosis and which cannot be attributed to a known clinical diagnosis. (d) The specialist should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the symptoms represent (1) an objective indication of chronic disability resulting from an undiagnosed illness related to the Veteran's service in Southwest Asia; or (2) a medically unexplained chronic multi-symptom illness which is defined by a cluster of signs or symptoms. If so, the examiner should also describe the extent to which the illness has manifested. The examiner and specialist must discuss all relevant medical and other objective evidence of record and all lay assertions, to include the Veteran's assertions as to the nature, onset and continuity of relevant symptoms (particularly his assertions of experiencing fatigue since the time of his active service). The Veteran is competent to report his symptoms and history, and his assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. A complete and clear rationale for the conclusions reached, must be provided. (Continued on the next page) 4. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the above-requested actions, and any additional action(s) deemed warranted, adjudicate the claims on appeal, considering all pertinent evidence (to particularly include all that added to the electronic claims file since the last adjudication) and legal authority. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, Associate 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.