Citation Nr: 20037579 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 15-32 569 DATE: June 2, 2020 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1989 to August 1989 and April 1993 to November 2012. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in November 2016. A transcript of the hearing is associated with the claims folder. This case was previously before the Board in November 2018, on which occasion the claims were remanded. 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to service connection for a cervical spine disability is remanded. In a November 2018 decision, the Board remanded the Veteran’s claims to the RO for further medical development. Specifically, the Board directed the RO to request new VA medical opinions that address the relationship between the Veteran’s current right shoulder and cervical spine disabilities and documented in-service injuries to his neck and shoulder. The RO complied with the Board’s remand directives, and in October 2019 VA addendum opinions were proffered. Regarding the Veteran’s right shoulder, the examiner opined that the disability was less likely than not related to service. In rendering her decision, the examiner noted that there are no medical records from 2012 to 2016 noting a chronic condition. The examiner further suggests that the Veteran “could have had an acute injury” during this period. (10/17/2019, C&P Exam, p. 2). Similarly, regarding the Veteran’s cervical spine injury, the examiner opined that the disability was less likely than not related to service because there are no medical records from 2012 to 2016 supporting a diagnosis of a chronic condition and “an acute injury or injuries could have occurred” during this period. (10/17/2019, C&P Exam, p. 2). The Board finds that the October 2019 VA opinions are inadequate, as the examiner applied an improper standard of proof. The general standard of proof in veterans’ benefits cases is the benefit of the doubt rule, which provides that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the veteran. See 38 U.S.C. § 5107(b). In applying the benefit of the doubt rule, VA should find for the veteran when there exists an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. In opining that the Veteran’s disabilities are not related to service because he “could have” suffered an acute injury during a period of time where his medical records are missing, the examiner failed to afford the Veteran the benefit of the doubt. As such, the opinions are inadequate for evaluation purposes. Additionally, the examiner relied on the absence of medical records during the period between 2012 and 2016 as substantive negative evidence. The Board may not consider the absence of evidence as substantive negative evidence, unless silence in the record tends to disprove the Veteran’s assertion. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). In the present case, there is an absence of actual evidence during the period between 2012 and 2016, and based on this absence, the examiner drew negative inferences that the Veteran did not have chronic disabilities. These negative inferences were improper, as they were based on absence of actual evidence as opposed to substantive negative evidence. In light of the aforementioned, the Board finds that the October 2019 opinions are inadequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, new medical opinions are necessary. Finally, at the hearing before the undersigned the Veteran referenced treatment at Banner Health in Fort Collins. It does not appear that records from this facility have been associated with the claims file. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Banner Health. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right shoulder disability is at least as likely as not related to his documented rotator cuff tear in 1996. (6/11/2012, STR-Medical, p. 39). 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s cervical spine disability is at least as likely as not related to his October 2008 neck injury. (6/11/2012, STR-Medical, p. 20). The examiner must specifically address: (a.) A September 2009 imaging report of “minimal narrowing of the right neural foramina at the C3-C4 level.” (9/16/2009, C&P Exam, p. 19). (b.) A December 2016 imaging report of “neural foraminal stenosis of cervical spine at the right C3-4 level-opening where nerve exits.” (1/4/2017, Medical Treatment Records – Non-Government Facility, p. 9). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.