Citation Nr: 21000102 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-24 047 DATE: January 4, 2021 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a urinary disability, to include urinary frequency and incontinence, is remanded. Entitlement to a total disability based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1972 to May 1985, and from January 1986 to October 1992. These matters come to the Board of Veterans' Appeals (Board) on appeal from October 2016 and September 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2016 rating decision, the RO denied service connection for right and left shoulder disabilities and, in the September 2017 rating decision, the RO denied service connection for urinary frequency and incontinence and entitlement to a TDIU. In February 2019, the Board remanded the issues in the instant appeal in order to obtain VA addendum medical opinions. In a September 2019 decision, the Board, in pertinent part, denied service connection for right and left shoulder disabilities, a urinary disability to include urinary frequency and incontinence, and denied entitlement to a TDIU. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2020 Order, the Court granted a joint motion for partial remand (JMPR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the decision as to the aforementioned issues and remanded them to the Board for action consistent with the terms of the JMPR. As noted in the Board’s September 2019 decision, some of the Veteran’s service treatment records are unavailable. The Veteran has been properly notified of this fact and provided an opportunity to submit records in his possession. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to service connection for a left shoulder disability is remanded. Issues 1&2: The Veteran contends that his right and left shoulder disabilities began during active service after he fell on his right shoulder and landed on a metal toolbox. The Board finds that remand is necessary in order to obtain a VA medical opinion that substantially complies with the Board’s February 2019 remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (recognizing that a Board remand “confers on the veteran or other claimant, as a matter of law, the right to compliance with remand orders...and imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the remand”). A June 2019 VA shoulder and arm conditions examination reflects a diagnosis of right and left shoulder impingement syndrome as well as degenerative arthritis in both shoulders. The associated medical opinion reflects that these conditions were less likely than not incurred in or caused by an in-service injury, event or illness. The rationale was that there was no evidence of any injury, treatment or diagnosis related to either shoulder during service; and that the shoulder conditions were diagnosed more than 14 years after separation. The June 2019 VA medical is inadequate because it does not reflect consideration of the Veteran’s lay statements, as directed by the Board’s prior remand, in rendering a negative nexus opinion. Specifically, the opinion does not reflect consideration of the medical history obtained at the June 2019 examination (e.g. history of his in-service right shoulder injury and subsequent shoulder pain as well as his post-service bilateral shoulder symptoms and medical treatment), or other lay evidence of injury and symptoms (e.g. The Veteran described his in-service bilateral shoulder injuries and current bilateral shoulder complaints in a written submission—VA Form 21-4138 (May 2017)). Accordingly, the Board finds that remand is required to ensure that an adequate VA medical opinion is obtained that substantially complies with the February 2019 remand instructions. Stegall, 11 Vet. App at 271. 3. Entitlement to service connection for a urinary disability, to include urinary frequency and incontinence, is remanded. The Veteran contends that he has a urinary disability (urinary frequency and incontinence) that is due to his service-connected low back disability. A June 2019 VA medical opinion reflects that, because the Veteran was not found to have a diagnosis of a urinary disorder, it was less likely than not that there was a urinary disorder that was related to his service-connected low back disability. The June 2019 VA medical opinion is inadequate. It is noted that the opinion concluded that the medical evidence of occasional urgency is not diagnostic of a urinary disorder and further concluded that occasional urinary urgency could be a symptom of a medical condition such as an enlarged prostate or prostatitis, a side effect of medications, or due to caffeine or alcohol consumption. Given this, the opinion concluded that the Veteran did not have a urinary disorder that was caused by his service-connected lumbar spine disability. However, the opinion is inadequate because it did not discuss whether any of the identified risk factors that may cause occasional urinary frequency were implicated by the specific facts in this case. Based on the foregoing, the Board finds that an addendum to the June 2019 VA medical opinion is required that contains a medical analysis specific to the Veteran’s claim. “[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 4. Entitlement to a TDIU is remanded. The Veteran has claimed that due to his service-connected low back and right knee disabilities as well as his nonservice-connected right shoulder disability, he is unable to secure and follow a substantially gainful occupation. See VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability (March 2017). The Veteran’s service-connected disabilities at this time do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). However, because a decision on the claims for entitlement to service connection for right and left shoulder disabilities could significantly impact a decision on entitlement to a TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Furthermore, this issue is inextricably intertwined with claims for increase pending with the originating agency (i.e. claims for increase for low back disability and bilateral lower extremity radiculopathy). Therefore, consideration of the matter is deferred. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to the June 2019 VA shoulder and arm conditions examination to determine the nature and etiology of the Veteran's right and left shoulder disabilities. The claims file, including a complete copy of this remand, must be made available to the clinician for review. Detail the reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms; if there is any medical reason to accept or reject the proposition that the Veteran’s reported shoulder symptoms began during service and thereafter represented the onset of his current right and left shoulder disabilities, this should be noted. The clinician must opine on: (a.) Whether it is at least as likely as not (a 50 percent or greater probability), that; (i) the Veteran’s right and/or left shoulder disabilities were incurred in active service; or (ii) degenerative arthritis of the right and/or left shoulders manifested within one year after separation from active service; or (iii) the Veteran’s right and/or left shoulder disabilities are otherwise causally related to the Veteran’s active service, to include his report of falling on his right shoulder onto a metal toolbox. For the purposes of answering this question, the clinician should accept the Veteran’s report of injury as described by him in the record. (b.) Discuss the Veteran’s service treatment records, post-service complaints and medical records, and lay assertions, including those proffered during the June 2019 VA examination and the Veteran’s written submission dated May 2017. In doing so, address whether his reports about his symptoms align with how the currently diagnosed disabilities are known to develop or are his reports generally inconsistent with medical knowledge or implausible. (c.) Note: (1) A negative medical opinion may not be predicated solely on the absence of documented in-service complaints or findings; (2) If the clinician rejects any history (e.g. injury, symptoms in or since service, treatment, etc.), he/she must provide a full explanation. 2. Obtain an addendum opinion to the June 2019 VA medical opinion to determine the nature and etiology of the Veteran's claimed urinary disorder, to include urinary frequency and incontinence. The claims file, including a complete copy of this remand, must be made available to the clinician for review. The clinician must opine on: (a.) Whether the Veteran has objective signs or symptoms of a urinary disability, to include urinary frequency and incontinence, that is at least as likely as not (i) proximately due to his service-connected lumbar spine degenerative disc disease or bilateral lumbar radiculopathies; or (ii) aggravated beyond its natural progression by his service-connected lumbar degenerative disc disease or bilateral lumbar radiculopathies. (b.) The clinician must also discuss whether any of the possible causes for occasional urinary frequency identified by the June 2019 VA examiner (i.e. a medical condition, side effects of medication, caffeine or alcohol consumption) were implicated by the specific facts of the Veteran’s case. The opinion must reflect a reasoned medical explanation/analysis connecting any supporting data to the conclusions reached. 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include 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. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Krunic, 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.