Citation Nr: 22013548 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 14-38 390 DATE: March 9, 2022 REMANDED Service connection for headaches. Service connection for sinusitis. Service connection for a cervical spine disorder. Service connection for hypertension. Service connection for erectile dysfunction. Service connection for benign prostatic hyperplasia (BPH) with urinary frequency. Service connection for a hip disorder. Service connection for a right knee disorder. Service connection for a right ankle disorder. Service connection for a left ankle disorder. Service connection for tinea pedis. Service connection for a foot disorder, other than bilateral heel spurs, to include plantar fasciitis and pes planus. REASONS FOR REMAND The Veteran served on active duty from March 1981 to April 1984 and from February 2003 to September 2003. He also served in the Reserve. The case is on appeal from an August 2010 rating decision. In October 2016, the Veteran testified at a Board hearing Most recently, in a November 2020 decision, the Board denied a higher rating for hearing loss, and granted service connection for lumbar spine degenerative arthritis with bilateral lower extremity radiculopathy and bilateral heel spurs. At that time, the Board also remanded the remaining claims on appeal for further development. Upon remand, in an August 2021 rating decision, the RO granted service connection for obstructive sleep apnea. As that award represents a complete grant of the benefit sought on appeal, the issue is no longer on before the Board. 1. Service connection for headaches. 2. Service connection for sinusitis. 3. Service connection for a cervical spine disorder. 4. Service connection for hypertension. 5. Service connection for erectile dysfunction. 6. Service connection for benign prostatic hyperplasia (BPH) with urinary frequency. 7. Service connection for a hip disorder. 8. Service connection for a right knee disorder. 9. Service connection for a right ankle disorder. 10. Service connection for a left ankle disorder. 11. Service connection for tinea pedis. 12. Service connection for a foot disorder, other than bilateral heel spurs, to include plantar fasciitis and pes planus. Essentially, the Board's prior, November 2020 remand directed the RO to obtain VA opinions addressing whether the current medical conditions are related to service when considering the Veteran's own account of his symptoms during and since service. Opinions were obtained on remand, but they patently conflict with the Board's remand. The Board's prior remand explained that earlier opinions had found "insufficient evidence" of complaints or chronicity of care during or after service. The Board found this rationale problematic because the Board had previously remanded these claims based primarily on the Veteran's own testimony indicating symptoms during and since service. In not accounting for that evidence, the earlier opinions had required medical evidence of record documenting the Veteran's complaints. To this end, the Board found that the opinions impermissibly relied on an absence of documented complaints and treatment during and after service without explaining why, as a medical matter, the Veteran would have sought treatment or complained of the conditions during those time periods, or why an absence of contemporaneously documented complaints and treatment (as opposed to his current account of such) was otherwise medically significant. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). For this reason, the examiner's rationale is legally inadequate. After the Board's November 2020 remand, the Veteran underwent new VA examinations in July 2021. For each disability, the VA examiner gave a negative opinion. The VA examiner did not discuss, or even mention, the Veteran's own statements regarding his history of symptoms. The opinions given were identical in all material respects to the opinions previously found inadequate by the Board. An addendum from a different examiner was obtained in October 2021. For all conditions, the VA examiner gave a negative opinion. For most of the claimed conditions, the VA examiner dismissed the Veteran's own statements by summarily concluding that, "[w]hile the [V]eteran's statement regrading [sic] symptoms is [sic] credible, the [V]eteran is not medically qualified to ascribe symptoms to a diagnosis or etiology" (or some variation of that statement). The exception is the sinus condition, where the examiner acknowledged the Veteran's recollection of his symptoms during service, but went on to rely solely on the lack of documentation in the medical records. This addendum's treatment of the Veteran's lay statements presents a non sequitur and misunderstands the questions asked in the Board's remand. The Board was not asking whether the Veteran is medically qualified to ascribe symptoms to a diagnosis or etiology. Nor did the Board ask the examiner to accept the Veteran's statements as competent evidence establishing a nexus. If the Veteran's statements alone were competent evidence of a nexus to service, service connection could be granted based on the Veteran's statements alone, and a medical opinion would not be needed. This was not the purpose of the Board's remand. Rather, the Board was asking the examiner to answer whether the Veteran's current conditions are related to service when (1) accepting the truth of his statements and (2) evaluating those statements together with all the other evidence of record. The October 2021 addendum opinion ostensibly accepted the truth of the Veteran's statements, but did not then evaluate those statements in the context of the other evidence of record. To the contrary, the October 2021 examiner flatly and summarily rejected the validity of the Veteran's statements without a sound justification for doing so. The addendum noted that the Veteran was "deemed credible," but actually reverted ot the prior basis for the negative opinions--an absence of documented treatment. In doing so, the examiner failed to explain why documented treatment was necessary even when accepting the Veteran's credibility. The opinion does not inform the Board of the medical reasons for why the Veteran's own statements are not material to the VA examiner's understanding of his case. Stated differently, it is not clear to the Board why the examiner continued to demand documented treatment. The examiner did not explain (a) why the Veteran's current account of his symptoms needed to be documented in contemporaneous medical records or (b) what the documented treatment might show above and beyond the Veteran's own lay report of his symptoms. In short, the examiner did not explain (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. This was specifically asked for by the Board. This makes the opinion legally inadequate, and the Board cannot decide the case based on the given opinions. Because there has not been substantial compliance with the Board's previous remand directives, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain a medical opinion in connection with the cervical spine, hip, and headache claims. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has a current disorder that had its onset during, or is otherwise related to service. In answering this question, the examiner must consider the statements from the Veteran indicating symptoms starting proximate in time to service. The examiner must particularly account for the Veteran's belief that these disorders are related to a documented Humvee accident while serving in Iraq, but that he did not undergo treatment at that time because he was told doing so would have required him to go to Germany. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 2. Obtain a medical opinion in connection with the sinus claim. The examiner should provide an opinion as to whether itis at least as likely as not that the Veteran has a current disorder that had its onset during, or is otherwise related to service. In answering this question, the examiner must consider the statements from the Veteran indicating symptoms starting proximate in time to service. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 3. Obtain a medical opinion in connection with the bilateral ankle disorder claim. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has a bilateral ankle disorder that had its onset during, or is otherwise related to, service. In answering this question, the examiner must consider the statements from the Veteran indicating symptoms starting proximate in time to service. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 4. Obtain a medical opinion in connection with the tinea pedis claim. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has a current disorder that had its onset during, or is otherwise related to, service. In answering this question, the examiner must consider the statements from the Veteran indicating symptoms starting proximate in time to service. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 5. Obtain a medical opinion in connection with the right knee claim. The examiner should provide an opinion as to whether itis at least as likely as not that the Veteran has a right knee disorder that had its onset during, or is otherwise related to service, including a period of ACDUTRA or INACDUTRA. In answering this question, the examiner must consider the statements from the Veteran indicating symptoms starting proximate in time to service. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 6. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the erectile dysfunction, BPH with urinary frequency, and hypertension claims. As to BPH, the examiner must provide a diagnosis for any conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. If a current diagnosis is not present, the examiner should address whether the Veteran nevertheless has any functional impairment from his symptoms? If any condition is diagnosed or if there has been a functional impairment present, opine whether such condition is at least as likely as not related to an in-service injury, event, or disease. For all other conditions, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has a current disorder that had its onset during, or is otherwise related to service. In answering these questions, the examiner must consider the statements from the Veteran indicating symptoms starting proximate in time to service. The examiner must particularly account for the Veteran's testimony regarding the onset of erectile dysfunction and urinary frequency, and his spouse's statement regarding the onset of his sleep apnea symptoms. The examiner is asked to explain why these statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's or his wife's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 7. Obtain a medical opinion in connection with the foot disorder claim. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has a foot disorder that had its onset during, or is otherwise related to service, including a period of ACDUTRA or INACDUTRA. (Continued on the next page) In answering this question, the examiner must consider the statements from the Veteran indicating symptoms starting proximate in time to service. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.