Citation Nr: 21063741 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-17 952 DATE: October 15, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a bilateral shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to December 1967 and from September 1969 to October 1987. The Veteran died in July 2016, during the pendency of this appeal, and his surviving spouse has been substituted as the appellant in this appeal. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in January 2015 and July 2020 when it was remanded for further development. At the time of the July 2020 remand, the issues of service connection for an acquired psychiatric disability, hypertension, and a lumbar spine disability were also remanded. In an October 2020 rating decision, service connection was granted for these disabilities. As the appellant was granted the full benefit sought on appeal, these issues are no longer before the Board. Unfortunately, another remand is needed to satisfy VA's duty to assist the appellant in the development of her claims. 38 C.F.R. § 3.159(c)(1). In the July 2020 remand, the Board indicated that the Veteran was never afforded VA examinations to determine whether his cervical spine disability and bilateral shoulder disability were related to his active military service. The matters were remanded to obtain medical opinions. The clinician was directed to consider and discuss all lay assertions, to include the Veteran's assertions prior to his death as to the nature, onset, and continuity of symptoms. The Board noted that the Veteran had combat service, that a January 2006 VA contract examiner indicated the Veteran's reports that he had bilateral shoulder pain since 1985 and that the Veteran had "wear and tear" of the bilateral shoulder. A January 2011 VA contract examiner also noted that there was no accident or injury on the side of the shoulder and that the Veteran reported that he had been having pain in the right shoulder for over 30 years. Medical opinions were obtained in August 2020. The VA clinician opined that the Veteran's cervical spine disability and bilateral shoulder disability were less likely than not incurred in or caused by service. Regarding the bilateral shoulders, the clinician indicated that the Veteran denied shoulder problems at separation, and then subsequently claimed that shoulder pain started during service. Given that the Veteran denied shoulder pain at separation it was unlikely that it started during service. Regarding the cervical spine, while imaging in 2005 showed atlantoaxial arthritis, no evidence was found in the service treatment records regarding ongoing neck pain or arthritis of the cervical spine. Therefore, it was unlikely that it started during service. The VA medical opinion is inadequate in that it relied solely on the absence of evidence in the Veteran's service treatment records. A lack of contemporaneous medical records, by itself, is not a sufficient rationale for a negative medical opinion. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The clinician also did not sufficiently discuss the Veteran's lay statements, including statements from February 2008, where the Veteran indicated that during service he ended up with a job that consisted of 12 hour shifts every day for 20 years and developed trouble in the shoulders and neck. Additionally, the clinician did not consider the Veteran's statements that he had bilateral shoulder pain since 1985 and that the January 2006 VA contract examiner stated that the Veteran had "wear and tear" of the bilateral shoulder. As such, new medical opinions are needed in this case. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion regarding the etiology of the Veteran's cervical spine disability from, if possible, the medical professional who provided the August 2020 opinion. The claims file and a copy of this remand must be reviewed in its entirety and the medical professional must consider all medical and lay evidence of record. Following a complete review of the evidence of record, the medical professional is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that the Veteran's cervical spine disability is related to his active duty service. In rendering the opinion, the medical professional must consider the Veteran's statement that in service he ended up with a job that consisted of 12 hour shifts every day for 20 years and developed trouble in the shoulders and neck. The medical professional is reminded that a rationale for a negative nexus opinion based solely on the absence of in-service complaints will be considered inadequate. A complete rationale for all opinions must be provided. If the medical professional cannot provide a requested opinion without resorting to speculation, it must be so stated, and he/she must provide the reasons why an opinion would require speculation. The medical professional must indicate whether there was any further need for information necessary to make a determination. Additionally, the medical professional must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. 2. Obtain an addendum opinion regarding the etiology of the Veteran's bilateral shoulder disability from, if possible, the medical professional who provided the August 2020 opinion. The claims file and a copy of this remand must be reviewed in its entirety and the medical professional must consider all medical and lay evidence of record. Following a complete review of the evidence of record, the medical professional is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that the Veteran's bilateral shoulder disability is related to his active duty service. In rendering the opinion, the medical professional must consider and discuss the Veteran's statement that in service he ended up with a job that consisted of 12 hour shifts every day for 20 years and developed trouble in the shoulders and neck. The medical professional must also consider and discuss the January 2006 VA contract examiner's report that the Veteran indicated that he had bilateral shoulder pain since 1985 and the examiner's finding that the Veteran had "wear and tear" of the bilateral shoulder; and the January 2011 VA contract examiner's report that there was no accident or injury on the side of the shoulder and that the Veteran reported that he had been having pain in the right shoulder for over 30 years. The medical professional is reminded that a rationale for a negative nexus opinion based solely on the absence of in-service complaints will be considered inadequate. A complete rationale for all opinions must be provided. If the medical professional cannot provide a requested opinion without resorting to speculation, it must be so stated, and he/she must provide the reasons why an opinion would require speculation. The medical professional must indicate whether there was any further need for information necessary to make a determination. Additionally, the medical professional must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.