Citation Nr: 20007252 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 18-22 600 DATE: January 28, 2020 ORDER Service connection for cervical spondylosis with radiculopathy is granted. REMANDED Entitlement to service connection for depressive disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for right shoulder injury which was aggravated by military service, to include as secondary to service-connected cervical spine disability due to MOS, is remanded. FINDING OF FACT The Veteran’s cervical spondylosis with radiculopathy is related to the effects of the physical demands of his military occupational specialty (MOS) as a cannon crewman. CONCLUSION OF LAW The criteria for service connection for cervical spondylosis with radiculopathy are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1975 to June 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2017 and August 2017 rating decisions. The Board notes that new evidence has been associated with the Veteran’s claims file since the August 2018 supplemental statement of the case. Generally, the Board may not consider evidence not previously reviewed by the Agency of Original Jurisdiction (AOJ) unless a waiver of initial AOJ review is obtained from the veteran. 38 C.F.R. § 20.1304(c); Disabled Am. Veterans v. Sec’y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003). However, if a veteran filed a substantive appeal on or after February 2, 2013, as occurred here, an automatic waiver of initial AOJ review is implied for new evidence submitted by the appellant or representative to the AOJ or the Board. 38 U.S.C. § 7105(e). Because the Veteran filed his substantive appeal after February 2, 2013, and he has not specifically requested initial AOJ consideration of the evidence, such waiver is presumed. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claim. Entitlement to service connection for cervical spine disability. The Veteran seeks service connection for a cervical spine disability, contending in his August 2017 notice of disagreement and April 2018 VA Form 9 that it was due to the requirements of his MOS of cannon crewman, such as picking up heavy rounds and wearing heavy webgear and steel pot helmets. The question for the Board, therefore, is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran has a current disability of cervical spondylosis with radiculopathy that is related to the effects of the physical demands of his MOS as a cannon crewman. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A September 2017 imaging of the Veteran’s neck revealed multilevel moderate disc and facet degenerative change throughout the cervical spine. Accordingly, the first Shedden element, current disability, is met. The Veteran’s DD Form 214 reveals that the Veteran’s MOS was cannon crewman. The Veteran’s service treatment records show that in August 1976 he was seen for complaint of back and neck pain of one day’s duration. He reported that he had been carrying rounds the day before. Reduced neck range of motion was noted as the Veteran could not touch chin to chest. Minimal strain was diagnosed. In September 1976, he complained of having “knots on neck” and pain when swallowing. Accordingly, the second Shedden element, in-service incurrence of an injury, event, or disease, is met. In July 2017, the Veteran was afforded a VA examination for neck (cervical spine) conditions, during which diagnoses of cervical strain and right upper extremity radiculopathy were noted. The Veteran reported that his job in the military required constant heavy lifting, and his neck pain was insidious, which increased in frequency and severity. Initial range of motion testing revealed abnormal ranges. In a separate medical opinion, which addressed service connection of both the back and neck, the examiner opined that it was less likely than not that the Veteran’s neck disability was related to service. It was stated that “the Veteran’s job in the military required constant heavy lifting and then raising the heavy objects above waist level which in this providers opinion led to the development of a chronic cervical strain now with right upper extremity radiculopathy.” But because, it was stated, the Veteran’s service treatment records were silent for neck complaints, “a positive service connection opinion” could not be offered. In contrast, the examiner provided a positive nexus opinion as to the Veteran’s claimed back disability, also contented to be due to the Veteran’s MOS. On a standardized nexus statement form, prepared in January 2018, the Veteran’s primary care provider, M.D.B., indicated that the Veteran’s service treatment and post-service treatment records had been reviewed. It was noted that the Veteran had current disability of back and neck conditions of degenerative disc disease. It was indicated that the Veteran’s conditions were as most likely caused by or a result of service. Reference was made to see the August 1976 military clinic note. It was stated: “Strenuous use as a young man in the military likely contributed to accelerated or early onset arthritis in the neck and back.” In March 2018, the Veteran was afforded another VA examination for neck conditions, during which cervical strain was diagnosed. It was indicated that imaging of the cervical spine was available and that arthritis was not documented. It was noted, however, that the September 2017 cervical spine series documented age-related changes with spondylosis more prominent on the left side. It was opined that the Veteran reported symptomatology that was inconsistent with current radiographic findings, and there was no objective, clinical evidence to support a diagnosis of radiculopathy. It was stated: “Condition not caused by service of SC Condition.” It was stated that the Veteran’s current disability was “not caused by neck evaluation dated 1976” because on the 1977 physical examination the Veteran denied spine issues. The examiner also provided statements about distinctions between first, second, and third-degree injuries and provided a citation. Private medical records reveal an April 2018 MRI of the Veteran’s neck and a new patient consultation with a neurosurgeon in May 2018 for complaints of neck, back, and bilateral arm pain. Cervical spondylosis without myelopathy was diagnosed. Private medical records show that in February 2019 the Veteran was referred for pain management, at which time he reported back and neck pain since the 1970s “from unknown incident per se in the military.” He stated he had “wear and tear.” Cervicalgia, cervical stenosis, and cervical spondylosis with radiculopathy were diagnosed, and surgery was offered. The Board notes that the Veteran, while entirely competent to report his symptoms and in-service experiences, is not competent to proffer an opinion as to diagnosis or etiology of his neck disability. See 38 C.F.R. § 3.159(a)(1)–(2) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that “lay persons are not competent to opine on medical etiology or render medical opinions.”). Such opinions require specific medical training and are beyond the competency of a lay person, and accordingly, the Board finds the medical findings more probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995); Prejean v. West, 13 Vet. App. 444, 448–9 (2000). The Board has the responsibility of weighing conflicting medical opinions and may place greater weight on one physician’s opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300–04 (2008); Prejean v. West, 13 Vet. App. 444, 448–49 (2000) (stating that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Here, the Board assigns no probative value to either VA medical opinion as they are both based upon inaccurate facts. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate or incomplete factual premise is not probative). First, the July 2017 VA examiner overlooked that when the Veteran complained of back pain in August 1976, he also complained of neck pain. As the examiner found a positive nexus between the Veteran’s current back disability and his in-service duties as a cannon crewman, the Board presumes that a similar opinion would have been provided for the Veteran’s neck disability. Second, the March 2018 VA examination report and medical opinion suggest that the Veteran may not have been fully examined as the examiner’s statements that his reported symptomatology was inconsistent with imaging. The Board notes that the Veteran’s reported symptomatology is fully supported by the medical record. The examiner made reference to age-related changes in the Veteran’s neck, but the Board notes that the Veteran was only 60 years old at the time of the September 2017 imaging. The Veteran’s neck disability is severe enough to warrant surgery. Furthermore, the sole basis for the examiner’s negative nexus opinion was that the Veteran’s physical examination at separation was silent for a neck condition. The Board finds the January 2018 positive nexus statement from M.D.B. to be highly probative as he was one of the Veteran’s treatment providers. The opinion accurately reflected that the Veteran had reported in-service neck pain in relationship to heavy lifting of munitions, and the opinion correlated such strain in youth to acceleration or early onset of arthritis. Accordingly, the third Shedden element, causal relationship is met, and service connection for cervical condition due to MOS is warranted. REASONS FOR REMAND 1. Entitlement to service connection for depressive disorder to include PTSD is remanded. The Veteran seeks service connection for depressive disorder to include PTSD, contending that it relates to an in-service physical personal assault by a fellow service member that occurred while he was stationed in Amberg, Germany. VA medical records show a positive PTSD screen in January 2015, a January 2016 diagnosis of depressive disorder NOS (not otherwise specified), and an early diagnosis of unspecified anxiety disorder. During treatment in November 2016, the Veteran reported having been physically assaulted in service and stated that he felt that his whole life had been “screwed up by things that happened when he was in service.” In statements made in December 2016 and February 2017, the Veteran provided a detailed accounting of an in-service personal physical assault that included the location, a 60-day window of timeframe, the last name of his assailant, and the ranks and last names of those who had personal knowledge of the assault. The assault ended when the Veteran cut his assailant in self-defense, and the assailant then reported his injuries. The Veteran stated that he was then interviewed, assuming it was by military police who were accompanied by his commanding officer and section chief. Last names were provided. The Veteran contends that the event occurred between December 1976 and January 1977. The Veteran’s military personnel records show that he received several Article 15s in February and March 1977. He was found to be abusing drugs and underwent treatment in April and May 1977. In a May 1977 memorandum on Chapter 16 elimination for drug abuse, it was stated: “His duty performance and attitude for the last 6 months has been steadily declining to his present unsatisfactory level.” First, because the Board is prohibited from exercising its own independent judgment to resolve medical questions, VA examinations are commonly necessary to decide claims. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Here, the Veteran has not been afforded a VA examination for his claimed mental disorders despite current diagnoses of disability, a credible report of a significant in-service event, and a credible statement during treatment that he connects his current disability to the in-service event. Outside the context of PTSD, the duty to assist with the provision of a VA examination is not contingent upon prior verification of a claimed in-service event. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. §§ 3.304(f)(5); 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, on remand, the Veteran must be afforded a VA examination to determine the nature and etiology of his acquired psychiatric disorders taking into consideration his statements, the evidence of record, and accepted medical principles. 38 C.F.R. § 3.159(c)(4). Second, to support service connection for PTSD in the context of an in-service personal assault, corroborating evidence of the assault is required. 38 C.F.R. § 3.304(f)(5). Corroborating evidence can come from a wide range of sources, and VA has a duty to assist with this development. 38 C.F.R. §§ 3.159(c); 3.304(f)(5). Here, no attempts have been made to development evidence pertaining to the Veteran’s claimed in-service physical personal assault by a fellow service member, such as requests for any military police records and medical records of the assailant showing treatment for cuts consistent with the claimed events. Under VA General Counsel’s Precedential Opinion 05-2014 and the Court’s precedential decision in Molitor v. Shulkin, 28 Vet. App. 397 (2017), VA’s duty to assist extends to making reasonable attempts to obtain the relevant records for the assailant as he was injured sufficiently to have lodged a report, thereby suggesting that he also may have sought treatment of injuries. The issue in Molitor was whether VA’s “duty to assist requires VA, in a claim for service connection for a psychiatric disorder, to attempt to obtain records of servicemembers other than the claimant to aid in corroborating a claimed personal assault.” Molitor, 28 Vet. App. at 397. The Court held that, when the claimant “adequately identifies relevant records of fellow servicemembers that may aid in corroborating a claimed personal assault, the duty to assist requires VA to attempt to obtain such records.” Id. (citing VAGCPO 05-14 (VAOPGCPREC 5-2014), which was amended on January 5, 2017, during the pendency of that appeal). As addressed by VA General Counsel, the duty is not limited to claims for service connection for PTSD arising out of an in-service personal assault as was the context in Molitor. General Counsel held: In adjudicating a particular Veteran’s claim for benefits, VA generally would be obligated under 38 U.S.C. § 5103A to make reasonable efforts to obtain records pertaining to another individual if: (a) those records were adequately identified, would be relevant to the Veteran’s claim, and would aid in substantiating the claim; and (b) VA would be authorized to disclose the relevant portions of such records to the Veteran under the Privacy Act and 38 U.S.C. §§ 5701 and 7332. VAOPGCPREC 5-2014, ¶ 1 (Jan. 5, 2017). Accordingly, disclosure of VA’s own records is limited by the Privacy Act, 5 U.S.C. § 552a, and 38 U.S.C. § 5701. It is noted that: 5 U.S.C. § 552(b)(7) permits an agency to disclose a record “to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties.” Under this provision, a VA adjudicator deciding Veteran A’s claim potentially may consider records in Veteran B’s VA claims file without violating the Privacy Act. However, this provision does not itself authorize further disclosure of such records to Veteran A. Id. at n.2. Because privacy rights do not survive death, the Privacy Act does not apply if the third party is deceased. Id. ¶¶ 5, 19 (citing Crumpton v. United States, 843 F. Supp. 751, 756 (D.D.C. 1994); VAOPGCADV 53-90). For records in VA’s possession, under section 5701A, other than names and addresses and information protected by section 7332, they may be disclosed if VA finds that such disclosure would serve a “useful purpose.” Id. ¶ 5. It is noted that it may be necessary to redact the records to remove identifying information that is not relevant to the claim or is otherwise within the scope of the relevant authorization. Id. ¶ 8. When the claimant identifies records held by another agency concerning a third party that may be relevant to the claim, it is consist with VA’s duty to assist for VA to request that the other agency provide those records if such records may be disclosed to the claimant. Id. ¶ 14. In such cases, VA’s duty under 38 U.S.C. § 5103A to make “reasonable efforts” to assist claimants in obtaining evidence may include the duty to request that a third party provide written consent for VA to disclose records pertaining to the third party to the claimant. Id. ¶ 4. While the Privacy Act does not apply when the third party is deceased, limitations under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(6), may. VA may be required to balance the privacy interests of a decedent’s surviving family members, such as potential for harassment or grief, against the public interest in disclosure of information concerning the decedent to determine whether disclosure is warranted. Id. ¶¶ 5, 19 (citing Mobley v. Central Intelligence Agency, 924 F. Supp. 2d 24, 70–71 (D.D.C. 2013)). Here, the Veteran provided the rank and last name as well as section of his assailant. Depending upon the severity of the assailant’s injuries, he may have a VA disability claims file. The Board notes that information protected from disclosure under 38 U.S.C. § 7332 is not involved here. If VA does not possess a claims file for the assailant, then it has a duty to make reasonable efforts to obtain the relevant records in conformity with VAOPGCPREC 5-2014. Accordingly, on remand, attempts must be made to obtain military police reports and medical records of the assailant that may corroborate the Veteran’s claimed in-service PTSD stressor event. Also, on remand, any pertinent ongoing VA and private treatment records should be associated with the claims file. 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to service connection for right shoulder injury which was aggravated by military service, to include as secondary to service-connected cervical spine disability due to MOS, is remanded. The Veteran seeks service connection for a right shoulder disability, contending in his August 2017 notice of disagreement and April 2018 VA Form 9 that it was due to the requirements of his MOS of cannon crewman, such as picking up heavy rounds and wearing heavy webgear and steel pot helmets. VA medical records show that in January 2016 the Veteran complained of shoulder pain and reported that he had a right clavicle fracture in 1974. The indication for a September 2017 X-ray of the Veteran’s cervical spine was right side neck pain with radiation into the right shoulder and numbness and tingling in the right arm and hand. A November 2017 X-ray of the right shoulder revealed hypertrophic change of the acromioclavicular joint and the appearance of a prior injury. The indication for an April 2018 MRI of the cervical spine was right shoulder pain with decreased range of motion, loss of grip, and weakness in the right hand. A May 2018 MRI of the right shoulder revealed supraspinatus tendinopathy with partial thickness tear along the articular surface distally extending towards the attachment; joint effusion; subdeltoid and subacromial inflammation; bone cysts in the humeral head; and degenerative changes along the acromioclavicular joint with bone spurs. The Board finds that the Veteran’s manifestation of symptoms raises several issues for consideration. First, the Veteran’s statement that he broke his clavicle in 1974 raises the issue of whether the Veteran had a pre-existing condition at the time of induction into service. At the time of a service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; see 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004). The presumption of soundness arises in favor of a veteran who claims benefits when a preexisting disability not noted on the report of the entrance examination arises during service. See Crowe v. Brown, 7 Vet. App. 238 (1994). Here, the Veteran’s November 1975 reports of medical history and medical examination for enlistment are silent for any pre-existing clavicle or shoulder condition such that the presumption of soundness has attached as to this condition notwithstanding his January 2016 statement that he had a fractured right clavicle in 1974. To determine whether the presumption of soundness is rebutted, an examiner must determine whether any disability clearly and unmistakably pre-existed service and did not undergo an increase in the underlying pathology during service. See 38 U.S.C. § 1111; see 38 C.F.R. § 3.304(b); VAOPGCPREC 3-2003; Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 236 (2012); Crowe v. Brown, 7 Vet. App. 238 (1994). Second, the medical evidence establishes that the Veteran’s right shoulder disability is manifested with symptoms that may be related to his service-connected neck disability as well as structural changes such that the issue is raised whether the Veteran’s right shoulder disability warrants service connection on a secondary basis to his service-connected neck disability. The Veteran’s DD Form 214 reveals that the Veteran’s MOS was cannon crewman. The Veteran’s service treatment records are silent for complaint, diagnosis, or treatment of a right shoulder condition, and the Veteran does not contend otherwise. His records show, however, that he was seen in August 1976 for back and neck pain after having carried rounds the day before. Medical records from the Veteran’s primary care provider, M.B., show that in November 2017 a complete X-ray series of the right shoulder with Y view of scapula was ordered due to chronic right shoulder pain, possibly due to strenuous use in the military. VA medical records show that during a March 2018 primary care visit the Veteran reported chronic right shoulder pain since 1977, stating that he aggravated it while in the military. The Veteran has not been afforded a VA examination for shoulder conditions. As there is evidence of current disability, in-service treatment of similar medical complaint, and a treatment provider’s consideration of a causal connection between the Veteran’s service and his current disability, a VA examination is required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). On remand, a VA examination is required to determine the nature and etiology of the Veteran’s right shoulder disability, taking into account his possible pre-existing condition, service-connected neck disability, in-service duties as a cannon crewman, the record evidence, and accepted medical principles. 38 C.F.R. § 3.159(c)(4). Also, on remand, any pertinent ongoing VA and private treatment records should be associated with the claims file. 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). These matters are REMANDED for the following actions: 1. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination of any relevant medical records pertaining to the Veteran’s mental health and right shoulder disability. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all records of treatment or examination from all the sources listed by the Veteran (VA and private facilities) which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If any records cannot be secured, provide the required notice and opportunity to respond to the Veteran and his representative. If possible, to expedite the case, the Veteran should submit these records himself. 2. Reasonable efforts must be made to corroborate the Veteran’s claimed stressor event, including military police records and medical records for the assailant. If any records cannot be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After the above development has been completed, the Veteran should be afforded a VA examination for mental conditions to determine the nature and etiology of any current acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. If the Veteran’s claimed in-service stressors are verified, the examiner should be provided with a summary of the verified in-service stressors, and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. Particular attention should be given to the Veteran’s statements made during treatment and in November 2016 and February 2017 pertaining to an in-service physical personal assault; the Veteran’s military personnel records showing disciplinary action and deterioration of performance in the last six months of service. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology and in-service events. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify any psychiatric disorder that has been present during the appeal period or within close proximity thereto. If the examiner disagrees with a prior diagnosis in the record, the examiner should explain why such a diagnosis is not warranted. For each diagnosis identified, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the disorder manifested in service or is otherwise causally or etiologically related to his military service, including the claimed physical personal assault. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If a PTSD diagnosis is deemed appropriate, the examiner should then opine whether it is at least as likely as not (50 percent probability or greater) that PTSD is related to any in-service stressor. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must reconcile any opinion with the evidence of record and cite to the record as appropriate. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must address any conflicting medical evidence of record. If the examiner is unable to offer the requested opinion, 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. 4. Schedule the Veteran for an appropriate examination to determine the nature and etiology of the Veteran’s right shoulder condition. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including this Remand in its entirety, and to indicate review of the file in the examination report. Particular attention should be given to the Veteran’s statement that he had a broken clavicle in 1974; he is service-connected for cervical spine disability due to MOS; and the nature of his duties during service as a cannon crewman. The examiner must obtain a full history from the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (a) Please provide an opinion whether it is clear and unmistakable (obvious and manifest) that the Veteran had pre-existing right shoulder disability at the time of induction into active duty service. (b) If the examiner finds that the Veteran clearly and unmistakably had pre-existing right shoulder disability at the time of induction into active duty service, then please provide an opinion whether it is clear and unmistakable (obvious and manifest) that the right shoulder disability was not aggravated by service. In other words, is it clear and unmistakable that any worsening of the condition was due to the natural progression of the condition? Aggravation is defined as a permanent worsening beyond the natural progression of the condition. (c) If the examiner finds that the Veteran clearly and unmistakably did not have a right shoulder disability at the time of induction into service, then please indicate whether the Veteran’s right shoulder disability is at least as likely as not (50 percent or greater probability) due to or aggravated by an in-service injury, event, or disease, to include his duties as a cannon crewman. (d) Please indicate whether the Veteran’s right shoulder disability is at least as likely as not (50 percent or greater probability) proximately due to or aggravated by the Veteran’s service-connected cervical spine disability due to MOS. The Board notes that the Court recently held that causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). As such, the VA examiner must provide separate findings and rationales relating to causation and aggravation. The examiner should not resort to mere speculation, but rather should consider that the phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must reconcile any opinion with the evidence of record, citing to the record as appropriate. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must address any conflicting medical evidence of record. (Continued on the next page)   If the examiner is unable to offer the requested opinion, 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. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.