Citation Nr: 21003448 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 15-25 260 DATE: January 21, 2021 REMANDED Service connection for a left shoulder disability is remanded. Service connection for spinal fusion is remanded. Service connection for a back disability is remanded. Service connection for left upper radiculopathy is remanded. Service connection for right upper radiculopathy is remanded. Service connection for left hand and finger pain is remanded. Service connection for left arm pain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to July 13, 2020, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from November 1969 to September 1971 and from January 1991 to June 1991, with additional periods of active duty for training (ACDUTRA), inactive duty for training (INACDUTRA), and additional National Guard service. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, a videoconference hearing was held before the undersigned; a transcript is in the record. In March 2019, the Board remanded the Veteran’s claims for additional development. 1. Service connection for a left shoulder disability is remanded. 2. Service connection for spinal fusion is remanded. 3. Service connection for a back disability is remanded. 4. Service connection for left upper radiculopathy is remanded. 5. Service connection for right upper radiculopathy is remanded. 6. Service connection for left hand and finger pain is remanded. 7. Service connection for left arm pain is remanded. As all of the Veteran’s claims are closely related and have been addressed in the same VA medical opinion, the Board finds it is appropriate to address them together for the purposes of this remand. Despite the additional and regrettable delay, another remand is required because there was not substantial compliance with the Board’s prior remand. At least some of the opinions provided in the July and August 2020 VA medical opinions lack an adequate rationale to support their conclusions and some of the Board’s inquiries relating to the Veteran’s claimed disabilities were not fully answered. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). Additionally, through no fault of the AOJ, the incorrect legal standard was used with regard to the Veteran’s potential pre-existing condition or conditions. Additionally, the examiner did not take into consideration that the Veteran’s symptoms of pain, coupled with functional impact, can qualify as a disability for VA compensation purposes. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (despite lack of a formal diagnosis, symptoms may count as a disability for VA compensation purposes if they cause functional impairment). Further, a military personnel record associated with the claims file in December 2019 indicates the Veteran served in the U.S. Navy Reserve from September 2, 1971 to July 12, 1976. To date, the Veteran’s service treatment records and service personnel records for this period have not been obtained. For the reasons outlined above, a remand is required to obtain a new VA examination and medical opinion and to obtain the Veteran’s military records. 8. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to July 13, 2020, is remanded. Because adjudication of the Veteran’s service connection claims may impact adjudication of his TDIU claim, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. The AOJ should obtain the Veteran’s service treatment records and service personnel records for the period from September 2, 1971 to July 12, 1976. 3. Additionally, the AOJ should verify that all available service records have been requested for the dates provided by the Veteran as follows: (a.) The Veteran submitted December 2019 correspondence in which he indicated he had the following periods of service: U.S. Navy active duty from November 18, 1969 to September 1, 1971; Michigan National Guard from July 14, 1975 to July 13, 1976; Michigan National Guard from April 25, 1984 to March 31, 1998; U.S. Army Desert Shield/Storm January 7, 1991 to June 23, 1991 Active duty in Germany; Retired from Michigan National Guard in November 2012; Michigan National Guard January 13, 1984 to June 5, 1998 (retired June 5, 1998); July 19, 1996 to August 4 1996 Michigan National Guard at Olympics in Atlanta, GA; Served on Team Spirit South Korea March 15 to March 29, 1986 Michigan National Guard; and February 17-27, 1987 Michigan National Guard at supply NCO course in AR. 4. Then, arrange for a VA addendum medical opinion from an appropriate physician (but NOT the July and August 2020 examiner) to determine the nature and causes of the disabilities on appeal. Whether to conduct a new examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) is left to the discretion of the VA examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner(s) should be performed. To the extent possible, the AOJ should provide the examiner(s) with a list of dates of verified active service for VA purposes. Upon review of the entire record, and following interview and examination of the Veteran, the examiner(s) should provide opinions that respond to the following: (a.) Identify (by diagnosis) all left shoulder, back, upper radiculopathy, left hand/finger, and left arm disabilities. (b.) For EACH disability diagnosed, (SEPARATELY and/or JOINTLY if appropriate) is it at least as likely as not (a 50% or better probability) that this condition is related to, or was caused or aggravated by, the Veteran’s service? The Board notes for the examiner that, by law, despite lack of a formal diagnosis, symptoms may count as a disability for VA compensation purposes if they cause functional impairment. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran’s reports are both accurate and credible. The July 2020 VA examiner noted functional impairment regarding the Veteran’s left shoulder, left hand and finger, and left arm. It is unclear what, if any, functional impairment the Veteran’s other disabilities cause because the prior examiner did not note this information. Specifically with respect to any noted preexisting disability, by law, the examiner MUST (a) start with the assumption that the Veteran did NOT have the disability(s) before service, and then (b) must determine whether there is “clear and unmistakable evidence” that the Veteran’s disability(s) existed prior to service (by law, a notation of a history of a particular condition on the entrance examination report does not rise to the level of “clear and unmistakable evidence”). Then, (c) IF AND ONLY IF the examiner determines the Veteran’s disability DID pre-exist service, then the examiner MUST state whether any current disability was clearly and unmistakably NOT aggravated beyond the natural progression of the disease by active service. Please note that the “clearly and unmistakably” standard does NOT mean a lack of evidence. A complete explanation for the opinions must be provided. If the requested opinion cannot be provided without resort to speculation, the examiner should state this AND must explain WHY an opinion cannot be provided without resort to speculation (including whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): (c.) A July 1975 enlistment report of medical examination noting a normal clinical evaluation; (d.) A July 1988 Statement of Medical Examination and Duty Status noting that the Veteran had problems with the ulnar nerve in his left arm prior to AT-88 and that his period of active duty for training aggravated the problem; (e.) A March 1989 treatment record noting cervical and left arm pain; (f.) A January 1990 periodic report of medical history noting a history of neck and back pain; (g.) A January 1990 report of medical examination noting a normal clinical evaluation; (h.) An August 1997 treatment record noting the Veteran’s reports of left upper rhomboid pain radiating to the left arm with numbness; (i.) A September 1997 treatment record noting complaints of left shoulder pain for 10 weeks and numbness in the left fifth finger; (j.) A September 1997 EMG showing questionable radiculopathy and left shoulder issues; and (k.) The Veteran’s October 2018 hearing testimony that he had problems with his spine in 1989 and that this condition was aggravated during Desert Storm in 1991, and that he injured his left shoulder in 1997 after lifting military equipment. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Williams, 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.