Citation Nr: 18147520 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 05-12 712 DATE: November 5, 2018 REMANDED Service connection for a right shoulder disability is remanded. Service connection for cervical spine disability is remanded. Service connection for lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served in the North Carolina Army National Guard from April 1986 to July 2003. He had verified periods of active duty for training (ACDUTRA) from September 17, 1986 to December 17, 1986; September 7, 1988 to September 28, 1988; April 20, 1991 to April 21, 1991; May 4, 1991 to May 5, 1991; May 16, 1998 to May 30, 1998; and May 12, 2001 to May 26, 2001. This case comes before the Board of Veterans' Appeals (the Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2014, the Board denied the claims. The Veteran appealed the decisions to the United States Court of Appeals for Veterans Claims (the Court). In a September 2015 order, the Court vacated the May 2014 decision and remanded the appeals to the Board for further proceedings consistent with a September 2015 Joint Motion for Remand (JMR). In April 2016, the Board remanded these issues for additional development. In an April 2017 decision, the Board denied the claims. The Veteran appealed the decisions to the Court. In a May 2018 order, the Court vacated the April 2017 decision and remanded these appeals to the Board for further proceedings consistent with a May 2018 JMR. Service connection for Right Shoulder Disability, Cervical and Lumbar Spine Disabilities is remanded. The parties to the 2018 JMR deemed the examinations relied upon in the 2017 Board decision inadequate; they concluded the Board again failed to comply with the September 2015 Court Order and JMR in this regard. VA has a duty to ensure compliance with the terms of a Court remand See Stegall v. West, 11 Vet. App. 268, 271 (1998). Again, the examiner failed to review certain service medical records (SMRs) and private medical records. The 2015 JMR emphasized that the record “clearly indicates that while on active duty for training in May 1998, Appellant re-injured a shoulder for which he already had a profile when he fell off a truck; Appellant subsequently complained of, and was assessed with, a right shoulder and neck injury.” New examination must comply with the September 2015 JMR remand instructions, adequately addressing the identified evidence of record concerning the Veteran’s cervical spine, right shoulder, and lumbar spine disabilities, and providing an opinion that contains an adequate rationale. The matters are REMANDED for the following action: 1. Schedule the Veteran for examination to determine whether any cervical spine, right shoulder and lumbar spine disability present during the pendency of this claim is at least as likely as not related to service. The examiner should provide an opinion on the following: a. Identify any diagnosed cervical spine, right shoulder, and lumbar spine disability present since October 2003. b. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed cervical spine, right shoulder, and lumbar spine disabilities had onset during a period of active duty for training (ACDUTRA). In rendering the requested opinions, the examiner is asked to refer to the following information noted in the Veteran's service records: i) neck and arm pain after riding in a tracked vehicle in May 1991, though it is not clear if this was a period of ACDUTRA; ii) back, neck, and arm pain after ACDUTRA in May 1998; and iii) lower back and right shoulder pain after lifting a duffel bag in May 2001. c. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed cervical spine, right shoulder, and lumbar spine disabilities were aggravated during a period of active duty for training (ACDUTRA), considering the incidents referenced above in b (i to iii). The examiner is asked to address the clinical significance of the following: the January 1997 MRI which showed "mild posterior disc protrusion at L5-S1;" May 18, 21, 26 1998 SMRs indicating the Veteran fell out of a truck in May 1998; the May 22, 1998 lumbar spine x-ray report showing "borderline (Grade I) spondylolisthesis at L4-5" and "suspicious lucency through the L5 pars interarticularis suggestive of spondylolysis;" the June 1998 work capacity assessment by HealthSouth which referenced a nonservice-related, on the job injury to the neck in August 1996; a May 28, 1998 Line of Duty inquiry; Dr. P. H.'s July 2001 statement that the Veteran's medical condition was stable, though with intermittent exacerbations of symptoms and permanent work restriction; physician's assistant S. C.'s July 2001 statement that Veteran was disabled from June 2001 and not fit for normal duty; the October 2002 statement of the Adjutant General of North Carolina that the herniated nucleus pulposus C5-6 was incurred in the line of duty, but that degenerative disc disease, multiple cervical discs disease at C4-5/C5 -6/C6-7, cervical degenerative joint disease, and L5-S1 lumbar disk disease were not related to service and were not aggravated there in as determined by the National Guard Bureau's Surgeon; the September 2004 VA examination report and February 2005 addendum in which the examiner found it less likely than not that degenerative changes of the lumbar spine and right shoulder seen on x-ray were related to the service injuries noted in May 1998 and May 2001; a May 2006 Occupational Therapy Consult record; an Undated DA-2823; the November 2008 physical therapy record which noted that the Veteran's neck and right shoulder pain was possibly related to a fall while on active duty; and any other medical records that may be obtained suggesting a relationship between any current cervical spine, shoulder, and lumbar spine disabilities to the periods of ACDUTRA. The examination must provide a rationale explaining the various diagnoses prior to and after the May 1998 injury and whether the post 1998 diagnoses indicate aggravation. In addressing whether any neck, back and/or right shoulder disability is related to an in-service fall from a truck, the examiner is hereby informed that there is evidence that the Veteran fell out of a truck. As pointed out in the 2018 JMR, evidence in the record shows that while on active duty for training in May 1998, the Veteran re-injured his shoulder when he fell off a truck, and then subsequently complained of, and was assessed with, a right shoulder and neck injury. The examiner is asked to address this in terms of whether there was aggravation in service. In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. (Continued on the next page)   The underlying reasons for any opinion expressed must be provided. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Rippel, Counsel