Citation Nr: 22015133 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 16-10 506 DATE: March 16, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, to include as due to military sexual trauma, is granted. REMANDED Entitlement to a left knee disability, to include as secondary to service-connected right knee disability, is remanded. Entitlement to a right ankle disability, to include as secondary to service-connected right knee disability, is remanded. Entitlement to a right hip disability, to include as secondary to service-connected right knee disability, is remanded. Entitlement to service connection for right elbow strain is remanded. Entitlement to service connection for left ankle disability is remanded. Entitlement to service connection for a left elbow condition is remanded. FINDING OF FACT The Veteran's acquired psychiatric disorders, to include PTSD and depression, are related to her military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD and depression, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1978 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at an October 2018 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in August 2019 and the Veteran's claim for entitlement to service connection for an acquired psychiatric disability was denied. The Veteran appealed this decision to the Court of Veterans Appeals (Court). In March 2021, the Court issued a memorandum decision. The Court vacated the August 2019 Board decision and found that the Board did not support its decision with an adequate statement of reasons or bases and remanded the issue back to the Board. Service Connection Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, to include as due to military sexual trauma The Veteran contends that her acquired psychiatric disorders, to include PTSD and depression, are related to her military service and specifically her military sexual trauma. The Board concludes that the Veteran has a current psychiatric disability that is related to her military service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The December 2021 VA private examination shows the Veteran has a current diagnosis of PTSD and depression. Thus, the question becomes whether the current disabilities are related to service. On this question there are probative opinions in favor of the claim. The evidence in favor of the claim includes a December 2021 private VA examination. The physician provided a thorough and detailed review of the Veteran's medical history and lay statements regarding her in-service assault. The physician opined that the Veteran's military sexual trauma at least as likely as not caused her to develop her current diagnosis of PTSD with panic attacks. Additionally, the physician referenced other traumatic events in the Veteran's life, however, the physician ultimately stated that there were no other events, other than the Veteran's in-service personal assault, that would account for the Veteran's current symptoms or provide a competing explanation for when they began. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current acquired psychiatric disorders are related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD and depression, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to a left knee disability, to include as secondary to service connected right knee disability, is remanded. 2. Entitlement to a right ankle disability, to include as secondary to service connected right knee disability, is remanded. 3. Entitlement to a right hip disability, to include as secondary to service connected right knee disability, is remanded. The Veteran contends that her left knee, right ankle, and right hip disability are secondary to her service connected right knee disability. This matter was previously before the Board in December 2020 and was remanded to obtain a supplemental medical opinion that considers the Veteran's documented gait abnormality during the relevant appeal period. Specifically, the Board remand directed the examiner to address the assessment made by a November 2015 physician that the Veteran had right hip pain/trochanteric bursitis, "likely secondary to gait abnormalities" and right lateral ankle pain which the physician suspected was "related to knee pain and altered gait as well." Subsequently, in February 2021, addendum VA opinions regarding the Veteran's claimed conditions were obtained. The examiner stated that antalgic gait alone does not impair another joint and that there is no clear evidence from review of orthopedic literature to suggest than an injury to one joint would have any significant impact on another or opposite uninjured joint or limb. However, the February 2021 opinions do not discuss, as directed in the December 2020 remand, the Veteran's November 2015 treatment note linking her claimed disabilities to her service-connected right knee disability. As a matter of law, a remand by the Board confers upon the Veteran the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. Therefore, the Board finds that an addendum opinions must be obtained. 4. Entitlement to service connection for right elbow strain is remanded. The Veteran contends that her right elbow condition is related to her military service. Specifically, the Veteran has claimed that she injured her right elbow in-service. In the Board's December 2020 Board remand, the Board directed the examiner to clarify whether or not the previous VA opinion that stated that the Veteran's right elbow condition was "acute only" during service is consistent with the Veteran's service treatment records that show that the Veteran reported right elbow pain during a 4-5 month duration in-service. However, in the February 2021 opinion obtained pursuant to the Board's December 2020 remand, the examiner also stated that the Veteran's right elbow pain was acute only without discussing how this conclusion was made. The examiner additionally relied solely on the absence of treatment for and diagnosis of an elbow condition to establish a nexus between the Veteran's right elbow condition and military service. As a matter of law, a remand by the Board confers upon the Veteran the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. Therefore, the Board finds that the Veteran should undergo a VA elbow examination to determine the etiology of her right elbow condition in accordance with the below directives. 5. Entitlement to service connection for left ankle disability is remanded. 6. Entitlement to service connection for a left elbow condition is remanded. The Veteran's claims for service connection for left ankle and elbow conditions were previously denied due to lack of a current disability/diagnosis. As the Veteran is undergoing examinations for her right ankle and right elbow, the issues are inextricably intertwined, and the left ankle and elbow issues must also be remanded. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, opinions regarding these conditions' etiologies should be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine whether it is at least as likely as not that the Veteran's left knee, right hip, and right ankle disabilities are related to one or more of her service-connected disabilities. Specifically, the examiner is asked to address the following: a. Identify a diagnosis for any left knee, right hip, and/or right ankle disability present at any point during the relevant appeal period (April 2013 to present), whether or not it has resolved during that period. b. For each disability identified, is it at least as likely as not that: 1) it arose during or is otherwise related to the Veteran's active military service; 2) it is proximately caused by the Veteran's service-connected right knee disability, to include as due to an altered gait related to the right knee disability; (SEE BELOW) or, 3) it is aggravated beyond its natural progression by the Veteran's service-connected right knee disability, to include as due to an altered gait relating to the right knee disability? In responding to the above, the clinician's attention is directed to the Veteran's VA treatment records from physical rehabilitation and pain clinics that document antalgic gait in November 2014, March 2015, August 2015, September 2015, and November 2015. The clinician is asked to address the assessment made by a physician on a physical medical rehab note in November 2015 that the Veteran had right hip pain/trochanteric bursitis, "likely secondary to gait abnormalities" and right lateral ankle pain which the physician suspected was "related to knee pain and altered gait as well." All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely on the absence of evidence of in-service treatment or injury in the Veteran's service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 3. Schedule the Veteran for an examination by an appropriate clinician to determine whether it is at least as likely as not that the Veteran's right elbow disability is related to her military service. Specifically, the examiner is asked to address the following: a. Identify a diagnosis for any right elbow disability present at any point during the relevant appeal period (April 2013 to present), whether or not it has resolved during that period. b. For any disability identified, is it at least as likely as not that the right elbow disability arose during or is otherwise related to the Veteran's active military service? (SEE BELOW) In responding to the above, the clinician's attention is directed to service treatment records documenting the Veteran's report of right elbow pain in July and August 1978. The clinician should address whether the Veteran's report of right elbow pain of 4-5 month duration (in an August 1978 STR) is consistent with the conclusion stated in the December 2019 examination that the Veteran's right elbow condition in service was "acute only." All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely on the absence of evidence of in-service treatment or injury in the Veteran's service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's left ankle and left elbow. The examiner must answer the following: a) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ankle is related to an in-service injury, event, or disease. b) a) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left elbow is related to an in-service injury, event, or disease. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely on the absence of evidence of in-service treatment or injury in the Veteran's service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. (Continued on the next page) 2. 5. After completing the above, and conducting any additional development deemed necessary in light of the expanded record, readjudicate the remanded issues of entitlement to service connection for a left knee, right hip, right ankle, right elbow, and left elbow disability. If any of the benefits sought are not granted to the Veteran's satisfaction, issue the Veteran and her representative a supplemental statement of the case then return the appeal to the Board, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.