Citation Nr: 21000837 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-56 225 MICHDATE: January 6, 2021 ORDER Entitlement to service connection for a rib disability is denied. REMANDED Entitlement to service connection for a right shoulder disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a rating in excess of 20 percent for a left shoulder disability is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a rib disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a rib disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1987 to November 1987, and from May 2003 to March 2004. This case was most recently before the Board in November 2018 when it was remanded for further development.  The Board finds there has been substantial compliance with the remand directives for the claims decided herein.  Stegall v. West, 11 Vet. App. 268 (1998).    Entitlement to service connection for a rib disability The Veteran asserts that his rib disability is related to an injury during his service in Kosovo. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of a fragmented anterior end of his left sided rib number 8, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of a rib disability began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with a fragmented anterior end of left-sided rib number 8 until December 2011, 7 years after his separation from service. Further, the October 2020 VA examiner opined that the Veteran’s rib disability is not at least as likely as not related to an in-service injury, event, or disease. While the examination report indicated the Veteran’s claim “removal of ribs,” the examiner noted that this had been in error and the Veteran’s only rib diagnosis was an avulsion fracture of left side rib number 8. The rationale was that the Veteran first reported left side chest pain with pain at palpitation of the left chest in November 2011 and he did not recall and injury that could have caused the fracture; the Veteran did not report symptoms at appointments before or after his diagnosis; and the examiner could not locate any evidence of pain during active duty, which suggested that it may have been a recent rather than remote injury. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Veteran believes his rib disability are related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, and goes beyond a simple immediately observable cause-and-effect relationship. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011).  Consequently, the Board gives more probative weight to the October 2020 VA examiner’s opinion.  Service connection for a rib disability is denied. REASONS FOR REMAND Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issues of service connection for a right shoulder disability and an acquired psychiatric disorder, and an increased rating for a service-connected left shoulder disability. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a right shoulder disability, to include as secondary to a service-connected disability is remanded. The November 2018 remand requested that the VA examiner discuss an October 2003 in-service treatment note in which the Veteran reported joint pain and a December 2003 post-deployment examination in which the Veteran reported swollen, stiff, or painful joints. While the October 2020 VA examiner noted the Veteran had injuries to his neck and left shoulder during service, the examiner noted that there were no complaints or evidence of a right shoulder injury. However, the examiner did not comment on whether the Veteran’s in-service reports of join pain were related to only his neck and left shoulder and not evidence of a right shoulder injury. Accordingly, a new opinion is necessary. Stegall, 11 Vet. App. at 271. The Board also notes that the November 2018 remand incorrectly identified the date of the Veteran’s in-service post-deployment examination. The proper date is January 2004. Additionally, while the November 2018 remand included a secondary theory of entitlement as part of the Veteran’s claim, no VA examiner has opined whether the Veteran’s right shoulder disability is secondary to a service-connected disability. On remand all theories of entitlement should be considered. Entitlement to service connection for an acquired psychiatric disorder is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issues of an acquired psychiatric disorder. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The November 2018 remand requested that the VA examiner discuss an October 2003 in-service treatment note that indicated a finding of anxiety and a December 2003 post-deployment examination in which the Veteran reported having thoughts that he might hurt someone or lose control with someone. On remand the July 2020 VA examiner based a negative nexus opinion, in part, on not finding such STRs. While the Board notes the proper date of the Veteran’s in-service post-deployment examination is January 2004, both the October 2003 in-service treatment note and the post-deployment examination are of record. Accordingly a new opinion is necessary. Entitlement to a rating in excess of 20 percent for a left shoulder disability is remanded. The Veteran’s left shoulder claim must be remanded again because the  October 2020 VA examination obtained on remand is inadequate. The VA examiner noted the Veteran had pain that causes functional loss on all range of motion of his left shoulder, but did not indicate where pain begins and ends. See Correia v. McDonald, 28 Vet. App. 158 (2016).  On remand, updated treatment records should be obtained.  See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992).    The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical providers who treated the Veteran for any psychiatric or right or left shoulder complaints since May 2020.  After securing the necessary release, take all appropriate action to obtain these records, including any updated VA treatment since May 2020.     2. After the completion of the above, obtain an addendum opinion (with examination or telehealth interview if deemed necessary by the provider) from the examiner who provided the October 2020 VA right shoulder opinion, (or from another appropriate provider if the October 2020 examiner is unavailable).  Copies of all pertinent records, including this remand, must be made available to the examiner for review.  Based on the review of the record (and examination if needed), the examiner should answer the following:     (a.) Is it at least as likely as not that the Veteran’s right shoulder disability is related to an in-service injury, event, or disease?  Why or why not?   (b.) If the answer to (a) is no, is it at least as likely as not that the Veteran’s right shoulder disability is (i) caused or (ii) aggravated by (defined as any increase in disability) the Veteran’s service-connected left shoulder or cervical spine disabilities? Why or why not?  The examiner must specifically consider and discuss the Veteran’s in-service October 2003 report of joint pain and January 2004 report of swollen, stiff, or painful joints. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate.  If an opinion cannot be provided, the examiner should indicate why.   3. After the completion of the (1), obtain an addendum opinion (with examination or telehealth interview if deemed necessary by the provider) from the examiner who provided the July 2020 VA psychiatric opinion, (or from another appropriate provider if the July 2020 examiner is unavailable).  Copies of all pertinent records, including this remand, must be made available to the examiner for review.  Based on the review of the record (and examination if needed), the examiner should answer the following:     Is it at least as likely as not that the Veteran’s acquired psychiatric disorder is related to an in-service injury, event, or disease?  Why or why not?   The examiner must specifically consider and discuss the Veteran’s in-service October 2003 treatment note finding anxiety and January 2004 report of thoughts that he might hurt someone or lose control with someone. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate.  If an opinion cannot be provided, the examiner should indicate why.   4. After the completion of the (1), schedule the Veteran for an examination of the current severity of his service-connected left shoulder disability. Copies of all pertinent records must be made available to the examiner for review. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups throughout the entire period on appeal. To the extent possible, the examiner should identify any symptoms and functional impairments due to his left shoulder disability alone and discuss the effect of the Veteran’s left shoulder disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.