Citation Nr: 21061896 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-12 728 DATE: October 5, 2021 REMANDED Entitlement to service connection for a cervical strain is remanded. Entitlement to service connection for a left shoulder strain is remanded. Entitlement to service connection for a right shoulder strain is remanded. Entitlement to a total disability rating for compensation purposes due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1978 to January 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and have been advanced on the Board's docket pursuant to 38 U.S.C. § 7107. In April 2021, the Board remanded the above claims, in addition to claims of service connection for a left hip disorder and a right hip disorder, for further development. A determination was made that the agency of original jurisdiction (AOJ) had not substantially complied with the Board's remand directives. The Board had previously requested that a medical doctor provide a nexus opinion. Regrettably, the AOJ has again failed to comply with the Board's remand directives, and further development is necessary. Stegall v. West, 11 Vet. App. 268, 271 (2011) (holding that the Board errs as a matter of law when it fails to ensure substantial compliance with its own remand directives). The AOJ granted service connection for a left hip disorder and a right hip disorder in a July 2021 rating decision. See Rating Decision Narrative, July 2021. As this constitutes a grant of the benefit sought for those issues to the maximum extent allowed by law, the matters are no longer within the Board's jurisdiction. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) 1. Entitlement to service connection for a cervical strain is remanded. In December 2020 and April 2021, the Board remanded these matters with specific instructions for the AOJ to obtain a nexus opinion from a medical doctor (M.D.) regarding the etiology of the Veteran's musculoskeletal disorders. Contrary to the Board's orders, the AOJ procured medical opinions from a physician's assistant in February 2021 and a nurse practitioner in July 2021. No explanation was provided as to why an opinion from an M.D. could not be obtained. The Veteran has raised challenges to the medical opinions based on the fact that they were not performed by a medical doctor, pursuant to the Board's request. See Correspondence, August 2021 (calling attention to the fact that the Board asked for opinions by a medical doctor, but noting that the AOJ has failed to provide them after several remands). Therefore, the Board finds that these matters must be remanded for an addendum medical opinion from a medical doctor regarding the nature and etiology of the cervical spine disorder. See Stegall, 11 Vet. App. at 271. The physician is asked to provide a copy of his or her curriculum vitae and any other relevant educational or training credentials with the medical opinion. Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (holding that once a veteran challenges the competency of a medical examiner, just as in typical litigation, the side presenting the expert must satisfy its burden of persuasion as to the expert's qualifications). The Board sincerely regrets the delay occasioned by multiple remands and appreciates the Veteran's patience as VA works to fulfill its statutory obligation to assist him in obtaining evidence necessary to support his claims for compensation. 2. Entitlement to service connection for a left shoulder strain is remanded. 3. Entitlement to service connection for a right shoulder strain is remanded. As stated above, these matters must be remanded because the AOJ failed to obtain a nexus opinion from a medical doctor pursuant to the Board's remand directives. The Board also notes that the most recent VA medical opinion in July 2021 did not clearly address whether the Veteran's right and left shoulder strains were aggravated beyond their natural progression by the service-connected lumbar spine disorder. See C&P Exam, July 2021; see also 38 C.F.R. § 3.310(b). An addendum opinion is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) 4. Entitlement to a TDIU is remanded. The claim of entitlement to a TDIU is inextricably intertwined with the above claims, and must be remanded for further development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following actions: 1. Secure for the record copies of complete updated clinical records of all VA and non-VA treatment the Veteran has received for the disorders on appeal. 2. Obtain an addendum medical opinion from a MEDICAL DOCTOR (M.D.) regarding the etiology of the Veteran's cervical spine disorder. If obtaining a medical opinion for an M.D. is not possible, the AOJ should provide a detailed good cause explanation for that determination. The AOJ is advised that the failure to obtain an opinion from an M.D. or provide a good cause explanation for not obtaining such an opinion will likely result in an additional remand. The medical professional is asked to provide a copy of his or her curriculum vitae and any other relevant educational or training credentials with the medical opinion. The medical professional is further asked to review the claims file and opine as follows: (a) Is it at least as likely as not that any cervical spine disorder, to include degenerative arthritis, had its onset during or is causally related to military service? (b) Is it at least as likely as not that any cervical spine disorder, to include degenerative arthritis, is proximately due to or a result of a service-connected disability, to include a lumbar spine disorder and radiculopathy of the lower extremities? (c) Is it at least as likely as not that any cervical spine disorder, to include degenerative arthritis, underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability, to include a lumbar spine disorder and radiculopathy of the lower extremities? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. A complete rationale should be provided for all opinions. The examiner is asked to consider relevant lay and medical evidence, to specifically include: the evidence of onset of neck pain prior to the 2013 diagnosis of arthritis, to include as of 2009 the September 2014 VA neck and back examinations; and the July 2015 VA treatment record noting that the Veteran's neck pain was "related to abnormal gait and tension/stress caused by low back pain." The examiner is reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. 3. Obtain an addendum medical opinion from a MEDICAL DOCTOR (M.D.) regarding the etiology of the Veteran's left and right shoulder disorder. If obtaining a medical opinion for an M.D. is not possible, the AOJ should provide a detailed good cause explanation for that determination. The AOJ is advised that the failure to obtain an opinion from an M.D. or provide a good cause explanation for not obtaining such an opinion will likely result in an additional remand. The medical professional is asked to provide a copy of his or her curriculum vitae and any other relevant educational or training credentials with the medical opinion. The medical professional is further asked to review the claims file and opine as follows: (a) Is it at least as likely as not that any left or right shoulder disorder had its onset during or is causally related to military service? (b) Is it at least as likely as not that any left or right shoulder disorder is proximately due to or a result of a service-connected disability, to include a lumbar spine disorder and radiculopathy of the lower extremities? (c) Is it at least as likely as not that any left or right shoulder disorder underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability, to include a lumbar spine disorder and radiculopathy of the lower extremities? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. A complete rationale should be provided for all opinions. The examiner is asked to consider relevant lay and medical evidence, to specifically include: the July 2015 treatment record noting that the Veteran's shoulder pain was "related to abnormal gait and tension/stress caused by low back pain." The examiner is reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.