Citation Nr: 18149249 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 14-28 828 DATE: November 9, 2018 REMANDED Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection for left arm peripheral neuropathy, to include as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1968 to June 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2014, the Veteran testified before a Decision Review Officer in Cleveland, Ohio, at a Regional Office hearing. The Veteran also testified before a Veterans Law Judge (VLJ) at a travel board hearing in June 2015. The Veteran was informed that the VLJ is no longer employed by the Board and declined the opportunity to testify at another Board hearing. Transcripts from both hearings have been associated with the claims file. This case was previously before the Board in October 2016, at which time it was remanded for additional development. The RO was instructed to obtain complete service treatment records (STRs), to include any records from Fort Leonard Wood and Fort Jackson from 1971. However, a specific request for the clinical records from the locations was not undertaken. Thus, the Board is not satisfied that there was substantial compliance with the prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to service connection for a left shoulder condition is remanded. The Veteran seeks service connection for a left shoulder disability. The Veteran contends that his left shoulder condition began while serving in Vietnam during the Vietnam War. The Veteran stated that, while avoiding a rocket attack in 1970, he jammed his left shoulder when he jumped over a sandbag, tripped, and landed wrong. Such contentions are consistent with the circumstances of the Veteran’s service. See 38 U.S.C. § 1154. The Veteran was afforded a VA examination for his left shoulder in May 2014. The VA examiner found that the Veteran does not have a left shoulder condition. The VA examiner then reported that the Veteran has arthritis in this left shoulder and treated him for pain. The VA examiner stated that it is less likely than not that the Veteran’s left shoulder condition is related to his military service. In complying with the October 2016 remand instructions, a different VA examiner provided an addendum opinion regarding the Veteran’s left shoulder condition in December 2016. That VA examiner concurred with the original VA examiner’s opinion. The VA examiner stated that in the absence of in-service documentation, any connection between the Veteran’s shoulder condition and his service cannot be established without resorting to speculation. The VA examiner only considered that there were no STRs related to a left shoulder condition. He failed to considered whether any current left shoulder disability is related to circumstances in service where the Veteran asserts that while avoiding a rocket attack in 1970, he jammed his left shoulder when he jumped over a sandbag, tripped, and landed wrong. The addendum opinion remains inadequate since the negative opinion was merely based on the lack of in-service documentation. See 38 U.S.C. 1154; See Barr. Therefore, an additional remand is warranted. Entitlement to service connection for a left arm peripheral nerve disability, to include as due to herbicide exposure, is remanded. The Veteran also seeks service connection for left arm peripheral neuropathy. The Veteran contends that his left arm peripheral nerve disability is related to his left shoulder disability. Alternatively, it may be the result of Agent Orange exposure. The Veteran was afforded a VA examination for his left arm peripheral neuropathy in May 2014. The VA examiner found that the Veteran does have left arm peripheral neuropathy, but it is less likely than not that the Veteran’s left arm peripheral neuropathy is related to his military service. The Veteran stated during this VA examination that his ex-wife had stabbed him in the left arm in 1972. The Veteran maintains that his peripheral neuropathy is secondary to his left shoulder condition from Vietnam or from exposure to Agent Orange. Exposure to herbicides, such as Agent Orange is presumed because the Veteran’s service records confirm that he served in the Republic of Vietnam. On remand, the RO was instructed to obtain an addendum opinion. The VA examiner was to specifically address whether the Veteran’s left arm peripheral neuropathy had an “early-onset” related to the Agent Orange criteria. 38 C.F.R. § 3.307(a)(6)(ii), 3.309(e). The VA examiner that provided the addendum opinion stated that the Veteran’s left arm peripheral neuropathy was not “early-onset” because the manifestations and timing coordinated to the time the Veteran’s ex-wife stabbed him. Without speculation, the Veteran’s neuropathies cannot be attributed to Agent Orange exposure. The VA examiner did not address whether the Veteran’s left arm peripheral neuropathy could be secondary to the Veteran’s left shoulder disability. The Veteran originally claimed that his left arm peripheral neuropathy was the result of his left shoulder disability. As the left shoulder disability is being remanded, the claim for left arm peripheral neuropathy as secondary to a left shoulder disability is inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). These matters are REMANDED for the following actions: 1. Request medical treatment/clinical records specifically from Fort Leonard Wood and Fort Jackson for treatment in 1971 for a left shoulder disability, in three-month increments, and any other records related to the Veteran, contained at that facility. 2. Obtain a supplemental opinion from the December 2016 VA examiner, if available. If the prior examiner is not available, schedule the Veteran for a new VA examination and opinion with another examiner of appropriate expertise. The VA examiner must review the claims file in its entirety, including this REMAND, and must note that review in the report. All appropriate findings should be reported in detail. The VA examiner should provide an opinion on the following: (a) Identify all diagnosed left shoulder disabilities during the appeal period. (b) Opine whether it is at least likely as not (50 percent or greater possibility) that any diagnosed left shoulder condition disability is related to service, to include the Veteran’s report that that while avoiding a rocket attack in 1970, he jammed his left shoulder when he jumped over a sandbag, tripped, and landed wrong. (c) The VA examiner should also opine as to whether it is at least likely as not (50 percent or greater possibility) that the Veteran’s left arm peripheral neuropathy had its onset during active duty service, to include exposure to Agent Orange or is related to or aggravated by a left shoulder disability. The VA examiner is reminded that the lack of a documented left arm peripheral neuropathy on separation cannot serve as the sole basis for a negative finding. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and service. (Continued on the next page)   The VA examiner should provide a complete rationale for the conclusions reached. If an opinion cannot be reached without resorting to speculation, the examiner must explain why. 3. After completing the above action, and any other indicated development, the Veteran’s claim must be re-adjudicated. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mahaffey, Associate Counsel