Citation Nr: 22014259 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 16-02 122 DATE: March 12, 2022 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for radiculopathy of the right lower extremity is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a psychiatric disability, to include depression, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1980 to January 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in May 2019. The Board remanded these matters in September 2019 and December 2020 for additional development. The matter is now returned to the Board for further appellate review. In December 2020, the Board remanded the Veteran's claims of service connection for hypertension; diabetes mellitus, type II; and bilateral eye blindness for additional development. VA provided the Veteran a hypertension examination in December 2020. Based upon that examination, the Agency of Original Jurisdiction (AOJ) granted service connection for hypertension and rated it noncompensable, effective August 3, 2013, under Diagnostic Code 7101. The Veteran has not submitted a notice of disagreement with either the effective date or disability rating assigned. Therefore, as service connection has been granted, the full benefit sought has been granted and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). VA provided the Veteran a diabetes mellitus, type II, examination in July 2021. Based upon that examination, the AOJ granted service connection for diabetes mellitus, type II, and rated it 10 percent disabling, effective August 3, 2013, under Diagnostic Code 7913. The Veteran has not submitted a notice of disagreement with either the effective date or disability rating assigned. Therefore, as service connection has been granted, the full benefit sought has been granted and the issue is no longer in appellate status. See Grantham, 114 F. 3d at 1158. VA provided the Veteran an eye conditions examination in August 2021. Based upon that examination, the AOJ granted service connection for bilateral eye blindness associated with diabetes mellitus, type II, and rated it 100 percent disabling, effective August 3, 2013, under Diagnostic Code 7913. The Veteran has not submitted a notice of disagreement with either the effective date or disability rating assigned. Therefore, as service connection has been granted, the full benefit sought has been granted and the issue is no longer in appellate status. Id. 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for a right hip disability is remanded. 3. Entitlement to service connection for radiculopathy of the right lower extremity is remanded. VA provided the Veteran examinations in December 2020 to determine the nature and etiology of her back, right hip, and right lower extremity radiculopathy disabilities; unfortunately, the associated medical nexus opinions are inadequate to adjudicate her claim. In December 2020, the examiner provided identical negative nexus opinions for all three claims because the Veteran's medical records do not contain chronicity nor continuity of care. The examiner did not offer any further explanation or rationale to support the negative nexus opinion or specifically explain why the absence of the medical records weighs against service connection given the Veteran's contentions of right hip pain since service and pain radiating down her right thigh. Therefore, these opinions are inadequate, and a remand is necessary to obtain new opinions that provide a reasoned rationale in support of their conclusion. See Barr v. Nicholson, 21 Vet. App. 303, 311; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned). In February 2021, VA obtained addendum opinions from the December 2020 examiner for all three claims. The examiner provided negative nexus opinions, for essentially the same reason, because the veteran's in-service complaint of back pain, alone, is not enough to provide a positive opinion; despite the Veteran's in-service complaints in December 1984 and April 1984, the record does not contain evidence of chronicity or continuity of care related to the Veteran's right hip; and despite the Veteran's in-service complaints right lower extremity pain, the record does not contain evidence of chronicity or continuity of care related to the Veteran's right lower extremity. The examiner did not offer any further explanation to support the negative nexus opinions. Id. Both the December 2020 and February 2021 nexus opinions also do not adequately consider the Veteran's lay statements concerning experiencing back pain, right hip pain, and right lower extremity pain while in service and after leaving active duty. In other words, the examiner appears to have impermissibly dismissed the Veteran's reports of back, right hip, and right lower extremity problems solely because these complaints were not documented in medical treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). The Veteran's file contains evidence she may be receiving Social Security Administration (SSA) disability benefits. See April 2021 Eye Telephone Encounter Note. The Veteran's claims file does not contain any SSA medical records, nor an indication VA has attempted to obtain the records. As the SSA records could be relevant to the Veteran's claim, the AOJ should attempt to obtain these records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). 4. Entitlement to service connection for a left ankle disability is remanded. The Veteran contends her left ankle disability is related to a left ankle injury she sustained while on active duty. In the alternative, the Veteran contends her left ankle disability is related to her in-service left foot injury. VA provided the Veteran an examination in December 2020 to determine the nature and etiology of her left ankle disability; unfortunately, the associated medical nexus opinions are inadequate to adjudicate her claim. In December 2020, the examiner provided a negative left ankle disability nexus opinion because the Veteran's medical records do not contain chronicity nor continuity of care. The examiner did not offer any further explanation or rationale to support the negative nexus opinion. Therefore, this opinion is inadequate, and a remand is necessary to obtain a new opinion that provides a reasoned rationale in support of its conclusion. See Barr, 21 Vet. App. at 311; see also Nieves, 22 Vet. App. at 304. In February 2021, VA obtained an addendum opinion from the December 2020 examiner. The examiner provided a negative nexus opinion for essentially the same reason. Despite the Veteran's in-service complaints of left ankle pain, the record does not contain evidence of chronicity or continuity of care related to the Veteran's left ankle. The examiner does not provide any additional rationale to support the negative nexus opinion. Id. The examiner also reported the medical evidence does not support a connection between the Veteran's current left ankle disability and her in-service left foot injury. The examiner reasoned, in part, the in-service left foot injury and left ankle injury were caused by two separate conditions. The examiner reported a January 1983 treatment note documenting a pulled ligament caused the left foot injury whereas the July 1983 and August 1983 treatment notes report a left ankle injury due to a sprain. The examiner reported that based on the passage of time between the incidents, it is unlikely the Veteran's left foot injury resulted in her left ankle injury. The examiner also reported there is no indication of chronicity and continuity of care in the medical records to suggest the in-service left foot injury lingered and resulted in the Veteran's current left ankle disability. Although the examiner concluded the Veteran's in-service left foot injury is unrelated to her current left ankle disability, the examiner appears to provide a supporting rationale and discussion of whether the Veteran's in-service complaints of left ankle pain are related to her in-service complaints of left foot pain; not whether the Veteran's current left ankle disability is related to the left foot disability, as requested by the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order). Moreover, a February 2020 left ankle x-ray indicates arthritis and the radiologist reported "Corticated density adjacent to the distal fibula is suggestive of an old injury." See February 2020 Baptist Memorial Hospital-Yazoo Radiology Report. The December 2020 examiner only diagnosed the Veteran with a left ankle strain and did not discuss the February 2020 x-ray and possible arthritis. Clarification of whether the Veteran has had left ankle arthritis at any point during the appeal period and, if so, whether it is related to her active-duty service, to include in-service complaints of left ankle pain, is necessary. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). A "current disability" for VA purposes is any diagnosis made during the period on appeal. Therefore, any diagnosis rendered during the appeal period, since the Veteran filed her claim, is considered a current diagnosis. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's file contains evidence she may be receiving SSA disability benefits. As the SSA records could be relevant to the Veteran's claim, the AOJ should attempt to obtain these records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan, 815 F.3d 786. 5. Entitlement to service connection for a psychiatric disability, to include depression, is remanded. The Veteran's file contains evidence she may be receiving SSA disability benefits. As the SSA records could be relevant to the Veteran's claim, the AOJ should attempt to obtain these records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan, 815 F.3d 786. The matters are REMANDED for the following action: 1. Obtain the Veteran's disability benefit records from the Social Security Administration, to include the underlying medical records upon which any determination was made. Document all requests for information as well as all responses in the claims file. If the records cannot be obtained, provide the Veteran notice of the inability to obtain the records in accordance with 38 C.F.R. § 3.159(e)(1). 2. Obtain an opinion, preferably with a qualified clinician who has not previously examined the Veteran, regarding the etiology of the Veteran's back, right hip, and right lower extremity radiculopathy disabilities. Schedule the Veteran for an examination only if deemed necessary by the clinician selected to provide the opinion. The selected clinician must provide an opinion addressing whether the Veteran's back, right hip, and right lower extremity radiculopathy disabilities are at least as likely as not (at least an approximate balance of positive and negative evidence) a result of an in-service event, disease, or injury. In doing so, the examiner must address (1) the Veteran's in-service right hip injury and (2) the Veteran's contentions that she has experienced pain in her back, right hip, and radiating pain down her right lower extremity since her time in service. The Veteran's report of symptoms capable of lay observation may not be disregarded solely on the basis that they are not recorded in contemporaneous medical treatment records. The examiner must be advised the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The selected examiner must provide a full rationale for his or her conclusion. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Obtain an opinion, preferably with a qualified clinician who has not previously examined the Veteran, regarding the etiology of the Veteran's left ankle disability. Schedule the Veteran for an examination only if deemed necessary by the clinician selected to provide the opinion. The selected clinician must provide an opinion addressing whether the Veteran's left ankle disability is at least as likely as not (at least an approximate balance of positive and negative evidence) a result of an in-service event, disease, or injury, to include the left foot injury in service. The examiner must also opine whether it is at least as likely as not that the Veteran's current left ankle disability is caused or aggravated by the service-connected left foot disability. Please note that causation and aggravation are distinct concepts and must be addressed separately. If the clinician determines that the Veteran has not had left ankle arthritis at any point during the appeal, the examiner must explain why he or she concluded that the diagnosis reflected in the record was made in error or has since resolved. In rendering this opinion, the selected clinician must specifically address the February 2020 Radiological Report indicating the Veteran may have arthritis. If the selected clinician determines the Veteran has had left ankle arthritis at any point during the appeal period, the clinician must also opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the left ankle arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The Veteran's report of symptoms capable of lay observation may not be disregarded solely on the basis that they are not recorded in contemporaneous medical treatment records. The examiner must be advised the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The selected examiner must provide a full rationale for his or her conclusion. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.