Citation Nr: 21000182 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-25 641 DATE: January 4, 2021 REMANDED Entitlement to service connection for a shoulder disability, to include arthritis, is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1966 to December 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision. The Veteran testified at Board hearing in August 2016. The Board remanded these matters in December 2016, June 2019, December 2019, and June 2020. The Board regrets the additional delay, but, as explained below, another remanded is necessary to safeguard the Veteran’s right to an adjudication based on an adequate evidentiary record. 1. Entitlement to service connection for a shoulder disability, to include arthritis, is remanded. The Veteran seeks service connection for a shoulder disability, claimed as arthritis. 07/09/2013, Statement in Support of Claim. Private treatment records show that the Veteran underwent surgery for his right shoulder in November 2013; the relevant treatment note shows diagnoses of massive rotator cuff tear, biceps tendon tear, and acromioclavicular joint osteoarthritis. 04/25/2014, Medical Treatment Record -Non-Government Facility, at 4-6; see also 08/02/2017, C&P Exam. The Veteran asserts that his current shoulder disability is related to strenuous work (e.g., working in tight spaces and in uncomfortable positions, lifting heavy objects) as a missile system mechanic in the Navy. At his August 2016 Board hearing, he reported that he experienced shoulder pain in service but acknowledged that he never sought treatment for it. 08/22/2016, Hearing Transcript, at 4-5. The Board also notes that the Veteran’s December 1969 separation examination is negative for any shoulder abnormalities. Regarding treatment post-service, the Veteran recently stated that he first sought treatment for his right shoulder in 1977 or 1978. 07/09/2019, C&P Exam. (He separated from service in December 1969.) In October 2020, pursuant to the Board’s June 2020 remand, VA obtained a new opinion regarding the etiology of the Veteran’s shoulder disability. The VA examiner opined that the Veteran’s shoulder disability was less likely than not incurred in service or caused by an injury in service. In her rationale, the examiner noted that medical records were silent for a diagnosis, treatment, complaints of a shoulder condition. The examiner explained that there was “no disruption to the articular surface of the joint on AD” and therefore, the Veteran’s arthritis is mostly due to the natural aging process. The examiner further noted that the Veteran worked as a carpenter after service (starting in 1970), then transitioned to work as a telecommunications manager. Regarding the Veteran’s statements that he was assessed for his shoulder in 1977 or 1978, the examiner noted that these statements were not supported by the evidence. The examiner also suggested that the Veteran’s complaints from 1977 or 1978 could be due to his work as a carpenter, which the examiner described as strenuous. Based on these factors, the examiner concluded that the Veteran’s shoulder disability was not related to service and that his arthritis did not manifest within one year after separation from service. The October 2020 VA opinion does not show adequate consideration of the relevant evidence. Significantly, it did not address the Veteran’s contention that his shoulder disability is related to strenuous work (e.g., working in tight spaces and in uncomfortable positions, lifting heavy objects) as a missile system mechanic in the Navy. As mentioned in the Board’s June 2020 remand, a February 2020 VA examiner determined that “it is likely and should be considered that the Veteran potentially had shoulder pain and performed strenuous work during service.” An adequate opinion is therefore not of record. A new opinion is necessary. See Miller v. Wilkie, 32 Vet. App. 249, 254-55 (2020) (stating that a medical opinion that fails to consider a veteran's lay statements and relies on the absence of contemporaneous medical evidence to conclude that there is no link between a veteran's in-service injury and current disability may be inadequate). 2. Entitlement to service connection for hypertension is remanded. The Veteran seeks service connection for hypertension. Private treatment records submitted by the Veteran show a diagnosis of hypertension since February 2014. 04/25/2014, Medical Treatment Record -Non-Government Facility, at 3. Nonetheless, in his May 2013 claim, the Veteran indicated that his hypertension began in 1970. 05/08/2013, VA 21-526 Veterans Application for Compensation. The Veteran separated from service in December 1969. His December 1969 separation examination shows a blood pressure reading of 138/86 but is negative for any significant medical history. 09/27/2011, STR –Medical, at 5. Recent medical records show a history of, and treatment for, hypertension. There is, however, no clear indication of when hypertension was first diagnosed or when treatment for hypertension started. Other than the Veteran’s indication that his hypertension started in 1970, he has not submitted any lay or medical evidence to establish that his hypertension was diagnosed in service or within one year after separation of evidence. Regarding the Veteran’s assertion that his hypertension started in 1970, while he is competent to report any observable symptoms and history of treatment, he is not competent to diagnose hypertension or provide a medical opinion as to the etiology of his current diagnosis of hypertension. In October 2020, pursuant to the Board’s June 2020 remand, VA obtained a new opinion regarding the etiology of the Veteran’s hypertension. The VA examiner opined that the Veteran’s hypertension was less likely than not incurred in service or within one year after service or caused or aggravated by his service-connected mental health disability. In her rationale, the examiner explained that the Veteran’s blood pressure reading at separation did not support a diagnosis of hypertension. The examiner further noted that there was no medical record of a diagnosis of hypertension within one year after separation from service, adding that, according to VA treatment records, the Veteran’s hypertension was diagnosed around 2009, decades after service. Regarding secondary service connection, the examiner explained that Veteran’s hypertension was not related to his service-connected mental health disability, as both disabilities are separate and unrelated entities, with no causal relationship shown in the medical literature. As for the aggravation prong of secondary service connection, the examiner’s rationale consisted of a detailed explanation of the pathophysiology of hypertension. The examiner explained that hypertension occurs when there is peripheral resistance in the vascular system and, as such, is unrelated to the direct supply of blood to the heart muscle. The examiner further indicated that [p]eripheral resistance is determined not by large arteries or the capillaries but by small arterioles, the walls of which contain smooth muscle cells. Contraction of smooth muscle cells is thought to be related to a rise in intracellular calcium concentration, which may explain the vasodilatory effect of drugs that block the calcium channels. Prolonged smooth muscle constriction is thought to induce structural changes with thickening of the arteriolar vessel walls possibly mediated by angiotensin, leading to an irreversible rise in peripheral resistance. Given the physiology of hypertension, no aggravation nexus to PTSD exists. The Board appreciates the thorough medical explanation but must nonetheless find that the October 2020 VA opinion lacks a clear rationale. Significantly, the VA opinion does not explain how a technical description of the pathophysiology supports the conclusion that the Veteran’s hypertension is not aggravated by his mental health disability. Rather, the opinion leaves it up to the adjudicator to find the connection. However, the Board is not competent to make such medical determinations, such as the relationship, or lack, thereof, between hypertension and a mental health disorder. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir. 2007). Accordingly, the Board has no choice but to remand this issue for a new opinion on this material question of secondary aggravation. These matters are REMANDED for the following actions: 1. Obtain an addendum opinion regarding the etiology of the Veteran’s shoulder disability. (a.) The examiner must opine whether any current bilateral shoulder disability is at least as likely as not related to an in-service injury, event, or disease. ***The opinion must show adequate consideration per controlling court cases of the relevant lay evidence, including the Veteran’s report of pain in service, his reported date of onset and history of treatment (he has reported seeking treatment in the late 1970s), and his contention that his current disability is related to strenuous work (e.g., working in tight space and in uncomfortable positions, handling heavy objects) as a missile system mechanic in the Navy. A February 2020 VA examiner determined that “it is likely and should be considered that the Veteran potentially had shoulder pain and performed strenuous work during service.” For purposes of rendering this opinion, the examiner is to assume that the Veteran had had shoulder pain and performed strenuous work during service. ***   (b.) Regarding the Veteran’s arthritis, the examiner must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, OR (3) was noted during service with continuity of the same symptomatology since service. The opinion is to show adequate consideration of the relevant evidence, to include as described above, and be supported by a comprehensive medical rationale. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Additionally, obtain an addendum opinion regarding the etiology of the Veteran’s hypertension. The examiner must opine whether the Veteran’s hypertension is at least as likely as not (1) proximately due to his service-connected mental health disability, OR (2) aggravated beyond its natural progression by his service-connected mental health disability. **In doing so, the examiner is asked to please lay out the journey to their conclusion, to include consideration of the relevant factors in this Veteran’s medical history.** If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board López, P. 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.