Citation Nr: 21065220 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-29 578 DATE: October 25, 2021 REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected right knee disability, is remanded. REASONS FOR REMAND The Veteran served in the Texas Army National Guard, to include a period of active duty for training (ACDUTRA) from August 1989 to February 1990. This appeal was previously before the Board in June 2019 and March 2021, at which time it was remanded to the agency of original jurisdiction (AOJ) for additional development. As will be explained another remand is once again necessary. 1. Left Shoulder Disorder As noted in the prior remands, during his February 2019 hearing, the Veteran testified that he initially injured his left shoulder in 1992 or 1993 while on ACDUTRA lifting toolboxes that weighed approximately 200 pounds. See February 2019 Hearing Transcript, p. 12-13. He stated that, thereafter, he experienced pain and weakness. Id.at p. 12. The Veteran acknowledged that he tore his rotator cuff following service in 2006; however, he stated that he experienced residuals of his initial in-service injury prior to this post-service injury. Id. at p. 15. The Board remanded the Veteran's claim in March 2021 because the December 2019 relied largely on an absence of documented care for shoulder problems prior to the 2006 post-service injury, and failed to address the Veteran's contention that his current left shoulder problems are associated with lifting toolboxes that weighed approximately 200 pounds during his ACDUTRA, as directed by the June 2019 remand. Thus, the Board directed the AOJ to obtain another medical opinion that addressed whether it was at least as likely as not (i.e., a 50 percent or greater probability) that any currently-diagnosed left shoulder disorder was related to injury sustained during his military service. In responding to the above, the examiner was directed to consider the Veteran's reported history, to include his report of a repetitive lifting injury during service (lifting toolboxes weighting approximately 200 pounds), and indicate from a medical perspective whether the current disability is at least as likely as not consistent with such injury. Another opinion was obtained in June 2021; however, the opinion provided once again failed to address the Veteran's contention that his current left shoulder problems are associated with lifting toolboxes that weighed approximately 200 pounds during his ACDUTRA. Instead, the opinion provider merely noted that a chronic diagnosis was not made during active duty, that the Veteran's symptoms were subjective, and that he was not capable of diagnosing a medical condition related to his subjective symptomatology. Because the June 2021 VA medical opinion fails to substantially comply with the March 2021 remand directives, another remand is once again necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Lumbar Spine Disorder As noted in the prior remands, the Veteran claims entitlement to service connection for a lumbar spine disorder on both direct and secondary bases. With regard to direct service connection, during his February 2019 hearing, the Veteran testified that he initially injured his back in January or February 1990 performing mechanics and lifting heavy toolboxes. See February 2019 Hearing Transcript, at p. 3. He stated that he then sought treatment at a private medical facility, Hendrick Medical Center, and was diagnosed with a back strain. Id.at p. 4. He also testified that he continued to experience back pain thereafter. Id. at p. 5. Furthermore, an August 2011 SSA psychological evaluation notes the Veteran's report of ongoing back problems since 1992 after initially hurting his right knee in the military. The Board remanded the Veteran's claim in March 2021 because the December 2019 opinion failed to address the Veteran's contention he initially injured his back in January or February 1990 performing mechanics and lifting heavy toolboxes during ACDUTRA, as directed by the June 2019 remand. Further, the Board notes that an October 2020 addendum opinion failed to explain why wear and tear in service from lifting heavy toolboxes and performing mechanics during service did not play a role in the subsequent development of his current disabilities. Thus, the Board directed the AOJ to obtain another medical opinion that addressed whether it was at least as likely as not (i.e., a 50 percent or greater probability) that any currently-diagnosed lumbar spine disorder was related to injury sustained during his military service. In responding to the above, the examiner was directed to consider the Veteran's reported history, to include his report of a repetitive lifting injury during service (lifting toolboxes weighting approximately 200 pounds), and indicate from a medical perspective whether the current disability is at least as likely as not consistent with such activities. Another opinion was obtained in June 2021; however, the opinion once again failed to address the Veteran's contention that his current lumbar spine problems are associated with heavy lifting during his ACDUTRA. Instead, the opinion provider merely noted that a chronic diagnosis was not made during active duty, that the Veteran's symptoms were subjective, and that he was not capable of diagnosing a medical condition related to his subjective symptomatology. Because the June 2021 VA medical opinion fails to substantially comply with the March 2021 remand directives, another remand is once again necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain a medical opinion from a clinician other than the December 2019 and March 2021 opinion providers addressing the etiology of the Veteran's shoulder disability. The record and a copy of this Remand must be made available. The need for an additional examination is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the entire record, the examiner should address the following question: Notwithstanding the fact that the Veteran suffered a left rotator cuff tear in 2006, is it at least as likely as not (i.e., approximately 50 percent probability) that any currently-diagnosed left shoulder disorder is related to injury sustained during his military service? In responding to the above, the examiner should address the Veteran's reported history, to include his report of a repetitive lifting injury during service (lifting toolboxes weighting approximately 200 pounds), and indicate from a medical perspective whether the current disability is at least as likely as not consistent with such injury. A clearly-stated rationale for any opinion offered should be provided, and must be based on consideration of all pertinent evidence. 2. Obtain a medical opinion from a clinician other than the October 2020 spine examiner and the March 2021 opinion provider addressing the etiology of the Veteran's lumbar spine disorder. The record and a copy of this Remand must be made available. The need for an additional examination is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the entire record, the examiner should address the following questions: a) Notwithstanding the fact that the Veteran was involved in a post-service motor vehicle accident in 1997 or 1998, is it at least as likely as not (i.e., approximately 50 percent probability) that any currently lumbar spine disorder is related to injury sustained during his military service? b) Is it at least as likely as not that any current lumbar spine disability was caused or aggravated by the Veteran's service-connected right knee disability? In responding to the above, the examiner should address the Veteran's reported history, to include his report of a repetitive lifting injury during service (lifting toolboxes weighting approximately 200 pounds), and indicate from a medical perspective whether the current disability is at least as likely as not consistent with such injury. A clearly-stated rationale for any opinion offered should be provided, and must be based on consideration of all pertinent evidence. (Continued on Next Page) 3. Then, readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.