Citation Nr: 20021977 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 10-49 694 DATE: March 30, 2020 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to a temporary total disability evaluation based on hospital treatment, observation, or the need for convalescence following a surgical procedure of the right shoulder is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1975 to September 1975 and from July 1986 to September 1992. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Videoconference hearing in February 2015 before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the electronic claims file. In April 2015, the Board reopened the issue of entitlement to service connection for a right shoulder disability and also remanded this issue as well as the issue of entitlement to a temporary total disability evaluation based on hospital treatment, observation, or the need for convalescence following a surgical procedure of the right shoulder for additional development. In May 2017, the Board again remanded these issues for additional development. In October 2018, the Board denied the Veteran’s claims for entitlement to service connection for a right shoulder disability and entitlement to a temporary total disability evaluation based on hospital treatment, observation, or the need for convalescence following a surgical procedure of the right shoulder. The Veteran subsequently appealed the October 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2019 Order, the Court granted the parties’ Joint Motion for Remand (JMR), vacating the Board’s October 2018 decision remanded the appeal to the Board for readjudication consistent with the JMR. Following a review of the Veteran’s claims file, the Board finds that further development is required prior to the adjudication of the claims for entitlement to service connection for a right shoulder disability and entitlement to a temporary total disability evaluation based on hospital treatment, observation, or the need for convalescence following a surgical procedure of the right shoulder. The Board notes that 38 C.F.R. § 3.310(a) permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). As noted above, the Board remanded this matter in April 2015 for further development. Pursuant to the April 2015 Board remand, the Veteran was afforded an examination in August 2015. However, as noted by the Board in its May 2017 Remand, while the August 2015 VA examiner opined that it was less likely than not that the Veteran’s right shoulder disability was caused by the Veteran’s service-connected cervical spine disability or right arm radiculopathy disability, the examiner failed to specifically address whether the Veteran’s service-connected cervical spine or right arm radiculopathy disabilities have aggravated her claimed right shoulder disability. As a result, the opinion did not adequately address whether the Veteran’s currently diagnosed right shoulder disability was aggravated (that is, permanently increased in severity beyond the normal progression of the disease) by her service-connected cervical spine disability or right arm radiculopathy disability as instructed by the April 2015 Board remand instructions. Accordingly, in May 2017 the Board again remanded these issues for additional development. As part of this remand, the Board instructed the RO to provide an etiological medical opinion for the claim for service connection for a right shoulder disability, to include as secondary to service-connected cervical spine disability and right arm radiculopathy disabilities. The instructions specifically indicated that the examiner was to address whether the Veteran’s currently diagnosed right shoulder disability was caused or aggravated (that is, permanently increased in severity beyond the normal progression of the disease) by her service-connected cervical spine disability or right arm radiculopathy disability. The Board notes that pursuant to the May 2017 Board remand, the August 2015 VA examiner provided an addendum opinion in November 2017. The examiner again noted that he had previously opined that it was less likely than not that the Veteran’s right shoulder disability was secondarily related to his cervical spine disability. The examiner also opined that it was less likely than not that the Veteran’s right shoulder disability was aggravated by the Veteran’s neck condition or her associated radiculopathy in the right arm. However, as determined by the Parties in the October 2018 JMR, while the VA examiner in the November 2017 addendum opinion opined that it was less likely than not that the Veteran’s right shoulder disability was aggravated by the Veteran’s neck condition or her associated radiculopathy in the right arm, the examiner failed to specifically address whether the Veteran’s right shoulder disability was permanently aggravated beyond its natural progression by the service-connected cervical spine disability or right arm radiculopathy disability. Thus, this opinion does not adequately address whether the Veteran’s currently diagnosed right shoulder disability was aggravated (that is, permanently increased in severity beyond the normal progression of the disease) by her service-connected cervical spine disability or right arm radiculopathy disability as instructed by the May 2017 Board remand instructions. The November 2017 VA addendum report does not comply with the Board’s May 2017 instructions. The United States Court of Appeals for Veterans Claims has held that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board finds that the August 2015 VA examiner should amend his November 2017 examination report in accordance with the Board’s May 2017 directives cited herein to determine whether or not the Veteran’s right shoulder disability was aggravated by her service-connected cervical spine disability or right arm radiculopathy disability. Consequently, a new remand is required to comply with the holding of Stegall. The Board again notes that the claim of entitlement to a temporary total disability evaluation for right shoulder surgery is inextricably intertwined with the claim for entitlement to service connection for a right shoulder disability. Thus, it is appropriate to defer final appellate review of the temporary total disability evaluation issue until the inextricably intertwined claim of entitlement to service connection for a right shoulder disability has been adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Return the claims file to the VA examiner that examined the Veteran in August 2015 and provided the addendum opinion in November 2017. If that examiner is not available, return the file to another examiner with the appropriate knowledge and expertise. If the new examiner feels that an actual physical examination is necessary, such examination should be scheduled. The examiner should furnish an opinion as to whether: (a) Is it at least as likely as not (50 percent probability or greater) that the right shoulder disability has been permanently aggravated beyond its natural progression by the service-connected cervical spine disability. (b) Is it at least as likely as not (50 percent probability or greater) that the right shoulder disability has been permanently aggravated beyond its natural progression by the service-connected right arm radiculopathy disability. Aggravated for VA purposes means the condition is worsened beyond the natural progression. If aggravation is found, the examiner should, to the extent that is possible, provide an opinion as to approximate baseline level of severity of the right shoulder disability before the onset of aggravation. 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. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Ensure that the examination report complies with this remand and answers the questions presented herein. If any report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, readjudicate the issues. If any benefit sought on appeal remains denied, the Veteran should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.