Citation Nr: 21067442 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-03 780 DATE: November 4, 2021 REMANDED Entitlement to service connection for a right shoulder disorder, claimed as arthritis of the right side, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection fora right wrist disorder, claimed as arthritis of the right side, to include as secondary to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served in the Reserves from November 2001 to August 2005. In January 2019, the Veteran presented testimony before the undersigned Veterans Law Judge of the Board during a videoconference hearing. A copy of the transcript has been associated with the claims file. In June 2019, June 2020, and January 2021, the Board remanded the claim of entitlement to service connection for CFS to the Agency of Original Jurisdiction (AOJ). In the June 2020 decision, the Board denied the claims of entitlement to service connection for right shoulder and right wrist disorders. The Veteran appealed the denial of these claims to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a March 2021 Order granting a Joint Motion for Partial Remand (JMPR), the Court vacated the Board's decision and remanded the claims pertaining to the right shoulder and right wrist to the Board for action consistent with the terms of the JMPR. See March 2021 JMPR. In August 2021, the Board remanded this claim in order to comply with the March 2021 JMPR. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the Board regrets further delay, a remand is necessary to ensure compliance with the instructions in the August 2021 Board remand. 1. Right shoulder and right wrist disorders As was previously noted in the August 2021 Board remand, the parties to the March 2021 JMPR agreed that the Board first erred in mischaracterizing the Veteran's claim as one of entitlement to service connection on a secondary basis to her PTSD. Instead, the Veteran is claiming that her right shoulder and wrist injuries were incurred in service when she was assaulted. Secondly, the parties to the JMPR agreed that the Board erred when it did not consider whether the Veteran's right wrist and shoulder disorders are secondary to her service-connected fibromyalgia, as indicated in the December 2019 VA Fibromyalgia DBQ. In the August 2021 opinions for both the right shoulder and right wrist, the examiner provided opinions regarding whether the currently diagnosed disorders were due to or aggravated by the Veteran's service connected psychiatric disorder. For both disorders, the examiner found that the Veteran's PTSD with major depressive disorder is a "psychologic disorder that does not exert any significant compensatory biomechanical strain on a joint. Such psychiatric diagnosis do not physically impede the muscular, tendonous, ligamentous, neurologic or skeletal structures that comprise the anatomy of either the radio-carpal or ulna-carpal articulations such that pathology would arise." However, the Board previously requested an opinion as to whether any diagnosed right shoulder and right wrist disorders may be due to the type of injuries the Veteran states she incurred during her in-service assault, which serves as the underlying basis for service-connected PTSD due to MST. Further, there was no opinion proffered on whether the diagnosed right wrist and shoulder disorders were due to or aggravated by the service-connected fibromyalgia, as was also requested in the prior August 2021 Board remand. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the August 2021 VA examiner regarding the nature and etiology of the diagnosed right wrist and right shoulder disorders. A complete rationale for all opinions offered must be provided. The examiner is asked to address the following: (a.) Right Wrist: 1. For each diagnosed right wrist disorder, the examiner is asked to specifically address whether it is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, TO INCLUDE AS DUE TO THE TYPE OF INJURIES SHE STATES SHE INCURRED DURING HER IN-SERVICE ASSAULT, WHICH SERVES AS THE UNDERLYING BASIS FOR SERVICE-CONNECTED PTSD DUE TO MST. The examiner then must provide additional opinions of: 1. Whether a right wrist disorder is at least as likely as not caused by ANY service-connected disability, to include service-connected fibromyalgia. 2. Whether a right wrist disorder at least as likely as not underwent any incremental increase in disability, regardless of its permanence, due to ANY service-connected disability, to include service-connected fibromyalgia. (b.) Right Shoulder: 1. For each diagnosed right shoulder disorder, the examiner is asked to specifically address whether it is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, to include as due to the type of injuries she states she incurred during her in-service assault, which serves as the underlying basis for service-connected PTSD due to MST. 2. The examiner then must provide additional opinions of: a. Whether a right shoulder disorder is at least as likely as not caused by ANY service-connected disability, to include the service-connected fibromyalgia. b. Whether a right shoulder disorder at least as likely as not underwent any incremental increase in disability, regardless of its permanence, due to ANY service-connected disability, to include the service-connected fibromyalgia. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. A complete rationale for all opinions offered must be provided. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE, CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. (Continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.