Citation Nr: 21063577 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-00 333 DATE: October 14, 2021 REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1989 to April 1994 and had a period of active duty from June 1997 to February 1998. The Board notes that the Veteran had a third period of service from October 1998 to April 2001 from which he received an other-than-honorable discharge. See 38 C.F.R. § 3.12. However, as the Veteran has alleged that his claimed disabilities are due only to his second period of service, the Board need not address whether the Veteran's character of discharge from his third period of service is a bar to VA disability benefits. See id. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a Decision Review Officer (DRO) hearing. A transcript from that proceeding is associated with the claims file. The Board previously remanded this case in December 2019 and March 2021 for additional development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its most recent remand. Therefore, the appeal must be remanded once again. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that service treatment records (STRs) associated with the Veteran's second period of active duty service are unavailable. In an August 2013 VA memorandum, VA gave a formal finding of unavailable records, stating that it was determined that Reserve service treatment records are unavailable for review and an August 2018 Service Treatment Record Certification (DD 2963) certified that a thorough review of all known Department of Defense systems, as appropriate, concluded that no further STRs exist for the Veteran. The Veteran was notified of this by way of August 2018 correspondence. See 38 U.S.C. § 5103(a). Moreover, VA advised the Veteran that he could submit additional evidence, to include private treatment records, in his possession in support of his pending claims. See December 2018 VA Form 21-4142. When records have been lost due to no fault of the Veteran, there is a heightened obligation to assist the Veteran in the development of the case. See Washington v. Nicholson, 19 Vet. App. 362, 36970 (2005); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). The law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). 1. Entitlement to service connection for a left shoulder disability is remanded. The Veteran seeks entitlement to service connection for a left shoulder disability which he contends had their initial onset during active-duty service. Specifically, the Veteran has asserted his left shoulder is related to duties associated with lifting and moving equipment during his second period of active-duty service. Alternatively, the Veteran asserted his left shoulder pain is related to his low back condition as he experienced simultaneous onset of symptoms in service. In the March 2021 remand, the Board directed the RO to schedule the Veteran for VA examinations and to obtain medical opinions assessing the nature and etiology of his left shoulder condition. Pursuant to the Board's March 2021 remand, the Veteran underwent a VA examination of his left shoulder in May 2021. Upon examination, the examiner confirmed a diagnosis of a left shoulder strain. The VA examiner opined that the Veteran's left shoulder disability was less likely than not incurred in or caused by military service. However, the examiner based her negative opinion solely on a lack of documented injuries to the left shoulder during service and the fact that the Veteran's left shoulder condition was not diagnosed until many years after service. The Board finds that the opinion, which is based on an absence of medical records without full consideration of the Veteran's competent lay reports of experiencing left shoulder pain since service, is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). In light of the above, the Board finds that the record does not contain medical opinions that are sufficient to fairly decide the Veteran's claim. Therefore, the claims must be remanded once again because the RO did not comply with the Board's prior remand directive to obtain adequate medical opinions on the Veteran's behalf. See Stegall, 11 Vet. App. at 268. On remand, addendum medical opinions must be obtained that are adequate for the Board to make an informed decision on the Veteran's claims. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). 2. Entitlement to service connection for a low back disability is remanded. As an initial matter, the Board notes that subsequent to the most recent supplemental statement of the case (SSOC) issued in June 2021, additional VA treatment records were associated with the claims file that are pertinent to the Veteran's service connection claim for a low back disability. However, the RO did not issue another SSOC as required by 38 C.F.R. §§ 19.31, 19.37. As such, the Board finds that remand is required for the RO to readjudicate the claim, with specific consideration of any additional evidence received since the June 2021 SSOC. Notwithstanding the need for an SSOC, the Board also finds that the Veteran's claim requires additional evidentiary development prior to appellate review. The Veteran seeks entitlement to service connection for a low back disability, which he contends had its initial onset during active-duty service. As noted above, alternatively, the Veteran asserted his left shoulder pain is related to his low back condition as he experienced simultaneous onset of symptoms in service. Pursuant to the Board's March 2021 remand, the Veteran underwent VA examinations of his back in May 2021. Upon examination, the examiner confirmed a diagnosis of a lumbosacral strain. The VA examiner opined that both the Veteran's low back disability was less likely than not incurred in or caused by military service. However, the examiner based her negative opinion solely on a lack of documented injury to the low back during service and the fact that the Veteran's low back conditions were not diagnosed until many years after service. The Board finds that the opinion, which is based on an absence of medical records without full consideration of the Veteran's competent lay reports of experiencing low back pain since service, is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). In light of the above, the Board finds that the record does not contain a medical opinion that is sufficient to fairly decide the Veteran's claim. Therefore, the claim must be remanded once again because the RO did not comply with the Board's prior remand directive to obtain an adequate medical opinion on the Veteran's behalf. See Stegall, 11 Vet. App. at 268. On remand, an addendum medical opinion must be obtained that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the matters are REMANDED for the following action: 1. Provide the entire claims file to a medical doctor (M.D.) to determine the nature and etiology of any diagnosed left shoulder and low back disabilities. The examiner must review the Veteran's entire claims file, to include a copy of this REMAND, and that review must be noted in the examination report. All clinical findings considered as well as lay statement should be reported in detail. If an examination is required to provide the opinions requested, such should be scheduled. Thereafter, the examiner is asked to provide an opinion with respect to the following: (a.) Identify all currently diagnosed disorders associated with the Veteran's left shoulder and low back during the appeal period, even if such disorder has since resolved. (b.) Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's left shoulder disability had its onset in or is related to service? (c.) If so, is it at least likely as not (i.e., at least a 50 percent probability) that the Veteran's left shoulder disability was caused or aggravated by the Veteran's low back disability? (d.) Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's low back disability had its onset in or is related to service? (e.) If so, it at least likely as not (i.e., at least a 50 percent probability) that the Veteran's low back disability was caused or aggravated by the Veteran's left shoulder disability? In rendering these opinions, the examiner must consider and address all relevant lay and medical evidence of record. The examiner's attention is invited to the July 2005 and June 2006 private treatment records regarding the Veteran's low back condition. See Feb. 2013 Medical Treatment Record Non-Government Facility, pp. 55,66 and the Veteran's March 2021 VA chiropractic treatment records. The examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the Veteran's lay contentions of record must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. It should be noted that a lack of documented treatment for the claimed disability in service, while probative, cannot serve as the sole basis for a negative finding. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the medical opinion inadequate and will result in further remand of the Veteran's claim. 2. Then, readjudicate the Veteran's claims with consideration of all the evidence associated with the claims file since the issuance of the June 2021 SSOC. If any benefit sought on appeal remains denied, issue an SSOC and allow the appropriate time for response before returning the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.