Citation Nr: 23027293 Decision Date: 05/08/23 Archive Date: 05/08/23 DOCKET NO. 12-26 731 DATE: May 8, 2023 REMANDED Entitlement to service connection for joint and/or muscle pain, to include arthritis, is remanded. REASONS FOR REMAND The Veteran had active-duty service from November 1979 to November 1983, with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from 1984 through 1991. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2010 Department of Veterans Affairs (VA) rating decision of the Agency of Original Jurisdiction (AOJ). In June 2018, the Board remanded for a VA examination, VA treatment records, and Social Security Administration records. In June 2020 and November 2020, the Board remanded for compliance with prior directives. In November 2020, the Board remanded again for compliance. In April 2021, the Board remanded for an adequate opinion that considered the Veteran's ACDUTRA and INACDUTRA service and right and left shoulder, bilateral knees, and left wrist, and for verification of the Veteran's periods of ACDUTRA and INACDUTRA. In June 2022 the Board remanded for lack of compliance-failure to verify the Veteran's ACDUTRA and INACDUTRA service and failure to obtain an adequate opinion that addressed the Veteran's lay reports. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the June 2022 remand, for the reasons addressed below, there has not been substantial compliance with the Board remand directives. While the Board sincerely regrets the additional delay, yet another remand is necessary to ensure the Veteran receives every possible consideration. 1. Entitlement to service connection for joint and/or muscle pain, to include arthritis is remanded. The Veteran contends that his "joint/muscle" issues are caused by, or otherwise due to, his military service. See VA Form 21-526 Veterans Application for Compensation or Pension, March 2010. As part of the most recent remand directives, the Board instructed the AOJ to obtain adequate medical opinions regarding the Veteran's diagnoses as well as the etiology of any diagnosed conditions. See BVA Decision, June 2022. The Veteran's periods of ACDUTRA and INACDUTRA were verified in a March 2023 memorandum; however, this memorandum was not before the February 2023 VA examiner. As a result, the examiner could not have provided opinions that addressed the Veteran's periods of ACDUTRA and INACDUTRA. In February 2023, the Veteran was seen for VA examinations to determine the diagnoses, extent, and etiology of his claimed condition[s]. The examiner noted that the Veteran had no diagnosed muscle injuries, though in objective testing there was reduced muscle strength in Group III and Group VII. The examiner did not explain how or why that reduced muscle strength came to be. The examiner diagnosed the Veteran with L shoulder strain and L wrist sprain, but also found there was no diagnosed muscle injury. Further, the examiner did not appear to consider the Veteran's reports of pain with functional impairment as a disability for VA purposes. The examiner found no diagnosable conditions in the Veteran's hands or knees because there was no objective evidence to render a diagnosis. The examiner stated that for the shoulders, hands, knees, and wrists, the Veteran's symptoms were subjective. Regarding the Veteran's left shoulder, he reported that he began experiencing pain in or around 1983, and it has progressively worsened since his time in the military. As for his hand, the Veteran explained that his hands began hurting in or around 1982, as his military occupational specialty (MOS) was that of a "bridge specialist and combat engineer," which "required him to use his hands a lot." Since the onset, the Veteran pointed out that his pain has progressed and/or worsened. The Veteran explained that his wrist and shoulder injuries caused "difficulty lifting, reaching, and picking up objects." See VA Compensation & Pension Examination, February 2023. The examiner did note that the Veteran reported pain in his hands and knees. For example, the Veteran explained that his hands would "lock up," and have caused him issues since he was in the service. The Veteran also reported that he experiences legs hurt, to the point that he cannot stand or walk for prolonged periods of time, which in turn impacts his ability to function in a workplace. The Veteran is capable of providing testimony and evidence regarding the symptoms he experiences, such as their onset, duration, frequency, and severity. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Despite the diagnoses of shoulder and hand disabilities, as well as lay evidence regarding leg/knee and hand issues, the examiner concluded that the Veteran has no conditions relating to his military service. Regarding the Veteran's shoulder and wrist disabilities, the examiner pointed out that the Veteran's in-service injuries would not be problematic "40-years post the occurrence." However, the examiner did not provide any medical explanation or rationale for their findings, which the Board deems to be conclusory. Furthermore, the examiner did not address the Veteran's lay statements that his wrists and shoulders have hurt since his period of active-duty service. Due to the conclusory statement, and the failure to address the Veteran's lay statements, the examiner's etiology opinions regarding the Veteran's wrist and shoulder disabilities are inadequate for adjudication. Similarly, the Board finds the examiner's opinions regarding the Veteran's knee and hand disabilities to be inadequate. While acknowledging that the Veteran reported pain and functional loss, the examiner found that due to the lack of "objective symptoms" and that the Veteran "was vague" regarding his conditions, there are no disabilities of his hands or knees. The examiner does not explain how or why the Veteran' was "vague," or how that finding matches up with the Veteran's relatively specific lay statements regarding the onset of pain, the progression of symptoms, and how he experiences functional impairment (hands "locking up" and his legs making it hard to stand or walk). Furthermore, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Here, the Veteran has presented evidence regarding functional limitations to his hands as well as his legs, and his lay statements regarding the onset and symptoms, which he is competent to report, yet the examiner did not appear to consider the pain with functional impairment as a disability. Further, there is evidence that the Veteran's reports of pain have been treated with prescription medication during the period on appeal and described as "rheumatologic." As the February 2023 examiner's findings are inadequate for adjudication, a further remand is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations to address his claimed joint and/or muscle pains, specifically regarding his wrists, hands, shoulders, and knees. Provide the examiner a copy of the Veteran's claims file, as well as these remand directives. The examiner should answer the following: Shoulders (a) Clarify the nature of any left or right shoulder disability the Veteran has had since filing his March 2010 claim, to include strain. The examiner is reminded that pain which causes functional impairment should be considered a disability for VA purposes, even without a diagnosis. (b) Whether it is as least as likely as not (likelihood in approximate balance, or greater) that any left or right shoulder disability began during active service or is otherwise related to active service? (c) Whether it is as least as likely as not (likelihood in approximate balance, or greater) that any left or right shoulder disability began during a period of ACDUTRA or INACDTURA, or is related to an injury during a period of ACDUTRA or INACDUTRA? The examiner should address: (1) February 1980 STRs showing rule out muscle strain, right side; (2) September 1983 ETS Examination and Medical History, showing reports of pain and weakness in muscles of the arms; (3) August 1986 Sick Slip showing a pulled muscle; (4) the Veteran's October 2010 statement that he did not have joint aches or problems until he left Germany in 1982 or around that time; (5) November 2010 VA treatment records showing reports of pain in the joints; (6) March 2011 VA treatment records reporting arthralgia; (7) December 2011 SSA determination that the Veteran had "other and unspecified arthropathies"; (8) June 2012 VA treatment records showing complains of pain in the hands and arms bilaterally for 5 years and being prescribed diclofenac for inflammation; (9) September 2018 VA treatment records showing reports of numbness when raising left arm, with possible radiculopathy; (10) August 2019 VA treatment records showing diclofenac gel and acetaminophen were prescribed to help chronic shoulder pain. Wrists and Hands (d) Clarify the nature of any left or right wrist or hand disability the Veteran has had since filing his March 2010 claim, to include strain. The examiner is reminded that pain which causes functional impairment should be considered a disability for VA purposes, even without a diagnosis. (e) Whether it is as least as likely as not (likelihood in approximate balance, or greater) that any left or right wrist or hand disability began during active service or is otherwise related to active service? (f) Whether it is as least as likely as not (likelihood in approximate balance, or greater) that any left or right wrist or hand disability began during a period of ACDUTRA or INACDTURA, or is related to an injury during a period of ACDUTRA or INACDUTRA? The examiner should address: (1) February 1980 STRs showing rule out muscle strain, right side; (2) September 1983 ETS Examination and Medical History, showing reports of pain and weakness in muscles of the arms; (3) August 1986 Sick Slip showing a pulled muscle; (4) the Veteran's October 2010 statement that he did not have joint aches or problems until he left Germany in 1982 or around that time; (5) November 2010 VA treatment records showing reports of right wrist pain intermittently for 7-8 years, with diagnosis of R wrist DJD, with x-ray evidence showing remote avulsion injury versus accessory ossicle; (6) February 2011 VA treatment records showing complains of pain in bilateral hands and March 2011 VA treatment records reporting arthralgia; (7) December 2011 SSA determination that the Veteran had "other and unspecified arthropathies"; (8) June 2012 VA treatment records showing complains of pain in the hands and arms bilaterally for 5 years and being prescribed diclofenac for inflammation, listing pain as rheumatologic; (9) June 2014 VA treatment records showing minimal positive ulnar variance in the left wrist; (10) July 2015 and June 2016 VA treatment records showing complains of pain in the wrists and hands intermittently and L wrist pain; (11) September 2018 VA treatment records showing reports of difficulty gripping and snapping, numbness when raising left arm, with possible radiculopathy; (12) August 2019 VA treatment records showing diclofenac gel and acetaminophen were prescribed to help chronic hand pain. Knees (g) Clarify the nature of any left or right knee disability the Veteran has had since filing his March 2010 claim, to include strain. The examiner is reminded that pain which causes functional impairment should be considered a disability for VA purposes, even without a diagnosis. (h) Whether it is as least as likely as not (likelihood in approximate balance, or greater) that any left or right knee disability began during active service or is otherwise related to active service? (i) Whether it is as least as likely as not (likelihood in approximate balance, or greater) that any left or right wrist or hand disability began during a period of ACDUTRA or INACDTURA, or is related to an injury during a period of ACDUTRA or INACDUTRA? The examiner should address: (1) February 1980 STRs showing rule out muscle strain, right side; (2) August 1986 Sick Slip showing a pulled muscle; (3) the Veteran's October 2010 statement that he did not have joint aches or problems until he left Germany in 1982 or around that time; (4) November 2010 VA treatment records showing reports of bilateral knee pain intermittently for 7-8 years, with diagnosis of knee DJD, with x-ray evidence showing mild early degenerative changes and sclerotic lesion in distal tibial metadiaphyseal region; (5) March 2011 VA treatment records reporting arthralgia; (6) December 2011 SSA determination that the Veteran had "other and unspecified arthropathies"; (7) June 2016 VA treatment records showing complaints of knee pain intermittently. The examiner must provide a complete rationale and medical explanation for all opinions provided. Conclusory statements unsupported by a medical explanation will not be adequate. If the examiner finds the Veteran's reports of symptoms are inconsistent with medical evidence or research, the examiner should clearly explain why, ideally citing to supporting research or data. If the examiner cannot provide the required opinions without resorting to speculation, the examiner must clearly explain whether it is due to a lack of knowledge in the medical community at large, a lack of expertise in the examiner, or a lack of other necessary information. MARISSA CAYLOR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Neville, Mikael 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.