Citation Nr: 20046566 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 16-27 925 DATE: July 13, 2020 REMANDED Entitlement to service connection for residuals of a right bicep tear/injury, to include pain and weakness, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy to include the periods from May 2005 to October 2012, January 2016 to December 2016, January 2017 to February 2018, and September 2018 to May 2019. His decorations and awards include the Bronze Star with Combat “V” device, the Navy Achievement Medal with Combat “V” device, the Combat Action Ribbon, the Iraq Campaign Medal, and the Afghanistan Campaign Medal. In May 2020, the Veteran revoked representation by Disabled American Veterans. See 38 C.F.R. § 14.631(f)(1). He is currently unrepresented. In June 2020 the Veteran requested that his appeal be withdrawn as he was satisfied with his 60 percent (combined) rating pertaining to “(h)emorrhoids, (l)umbosacral or cervical strain, impairment of collar bone or shoulder blade, (s)carring, progressive muscular atrophy.” The Veteran in this statement did not clearly express his intent to withdraw his claim of service connection for residuals of a right bicep tear/injury. “[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Thus, the Board finds that the Veteran did not withdraw his claim of service connection for residuals of a right bicep tear/injury and thus the issue remains before the Board. Entitlement to service connection for residuals of a right bicep tear/injury, to include pain and weakness. In December 2018 the Board remanded the issue of service connection for residuals of a right bicep tear/injury, to include pain and weakness, in order for the Veteran to be scheduled for a VA examination to determine whether he has a current right bicep disability, including pain resulting in functional impairment, which is related to service. The Board pointed out that the Veteran injured his right bicep during service and there was conflicting evidence as to whether the Veteran has a current diagnosis. On VA examination in December 2012 the Veteran reported being told in service that he had a right bicep tear. The VA examiner diagnosed a right bicep injury. However, on VA examination in March 2013 the examiner opined that the right bicep injury resolved and on a private orthopedic evaluation in June 2014 the examiner provided a diagnosis of right shoulder bicep tendinitis without an opinion on the etiology of the disability. Subsequently on VA examination in September 2019, the examiner indicated that the Veteran had a diagnosis of a right bicep tear injury in 2012. The examiner found that the Veteran had the following symptoms attributable to a muscle injury: consistent loss of power and consistent fatigue-pain. The examiner noted that the functional impact of the Veteran’s muscle injury included pain with bicep curl and inability to fully stretch, lift arms high, and pick up things easily. The Veteran also had difficulty lifting heavy items and carrying things without dropping. In an accompanying opinion the examiner opined that the Veteran’s bicep tear injury was less likely than not incurred in or caused by service based on the rationale that “(t)here was no continuity of care after 2012 for this injury (already service connected).” Notably this opinion is inconsistent with the evidence of record as the Veteran was treated for his right bicep after 2012. See, e.g., June 2014 private evaluation. Further, based on the September 2019 VA opinion it remains unclear whether the Veteran has a current right bicep disability, to include pain resulting in functional impairment, separate from his service-connected right shoulder recurrent dislocation with arthritis and his service-connected right shoulder impairment of the humerus. Therefore, there is a lack of compliance with the Board’s remand directives. Compliance with the Board’s remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For these reasons the matter is REMANDED for the following action: Obtain an addendum opinion from the VA examiner who conducted the September 2019 VA examination. If the examiner is unavailable another appropriate examiner should provide the opinion. If necessary, the Veteran should be scheduled for another VA examination. After reviewing the claims folder the examiner is asked to do the following: a.) Opine whether the Veteran has a current right bicep disability, to include pain resulting in functional impairment, that is separate from his service-connected right shoulder recurrent dislocation with arthritis and his service-connected right shoulder impairment of the humerus. b.) If so, the examiner is asked to opine whether it is at least as likely as not that the Veteran’s right bicep disability is etiologically related to service. In rendering the opinion the examiner is asked to consider the following: 1.) Service treatment records in February 2006 show the Veteran had a right bicep strain. In April 2006 service treatment records show the Veteran reinjured his right bicep during pool PT. The assessment was right bicep strain. 2.) A private orthopedic evaluation in June 2014 shows a diagnosis of right shoulder bicep tendinitis. 3.) On VA examination in September 2019, the examiner indicated that the Veteran had a diagnosis of a right bicep tear injury in 2012. The examiner found that the Veteran had the following symptoms attributable to a muscle injury: consistent loss of power and consistent fatigue-pain. The examiner noted that the functional impact of the Veteran’s muscle injury included pain with bicep curl and inability to fully stretch, lift arms high and pick up things easily. The Veteran also had difficulty lifting heavy items and carrying things without dropping. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to provide an opinion he or she should explain why. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.