Citation Nr: 21069408 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-48 375 DATE: November 18, 2021 REMANDED The claim for service-connection for residuals of a gunshot wound to the spine as secondary to service-connected lumbar spine disability is remanded. The claim for service connection for a right shoulder disability, to include as secondary to service-connected lumbar spine disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1996 until his honorable discharge in June 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 decision by a Regional Office of the United States Department of Veterans Affairs (VA). In April 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In August 2020, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to attempt to obtain outstanding private medical records and new VA examinations and medical opinions addressing the Veteran's claimed disabilities. The Board finds that the VA Regional Office obtained some of the outstanding private medical and made reasonable attempts to obtain all remaining potentially relevant private medical records. Unfortunately, the Board finds that with respect to the medical opinions obtained by the VA Regional Office there has not been substantial compliance with the Board's previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, remand is required. 1. The claim for service-connection for residuals of a gunshot wound to the spine as secondary to service-connected lumbar spine disability is remanded. As explained in the Board's August 2020 Remand Order, a VA Regional Office granted service connection for chronic low back pain in a May 1999 decision. In October 2010, the Veteran sustained a gunshot wound to the lumbar spine resulting in L1 paraplegia. He asserts his prior service-connected back disability made him more susceptible to damage from the gunshot wound he received. Thus, he asserts that his current gunshot wound residuals are more severe than they otherwise would have been but for his service-connected low back disability. In its August 2020 Remand Order, the Board directed the VA Regional Office to obtain a VA examination assessing the Veteran's current back disability(-ies) and to obtain opinions addressing the following questions: (1) What is the Veteran's baseline level of low back disability prior to the gunshot wound in 2010? (2) What is the nature of the Veteran's current low back disability that is separate and apart from residuals from a gunshot to the spine in 2010? (3) What is the likelihood that his service-connected low back condition made him more susceptible to increased residuals from the gunshot wound in 2010? (4) What is the likelihood that the Veteran's service-connected low back condition aggravated his current residuals of a gunshot wound? Initially, a VA-contracted examiner inaccurately believed that the Veteran's gunshot wound occurred in service and was already service connected. Thus, the May 14, 2021, opinions she offered are not adequate. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based on an inaccurate factual premise has no probative value."). The VA Regional Office obtained an addendum opinion date July 28, 2021, from the same examiner. On review of the opinions offered, the Board finds not all of the opinions are sufficient at this time. In particular, at to question # 3 above, the examiner opined that "the likelihood of his service-connected low back condition did not make him more susceptible to increased residuals from the gunshot wound in 2010." The examiner then cited the facts found within a January 1999 VA General Medical Examination and a February 1999 Medical Evaluation determination. She then concluded, "the Veteran did not have a musculoskeletal diagnosed condition before the gunshot [wound] in 2010. Chronic pain/strain occurs when muscle or tendon fibers are injured." The Board does not understand how the examiner concluded that the Veteran had both no musculoskeletal condition and chronic low back pain, which she acknowledged can be caused by muscle injury. This opinion appears contradictory to the Board. Moreover, the examiner did not adequately connect the facts she cited to her conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion."). Nor did she address the Veteran's lay statement of chronic back pain despite no medical documentation. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that an examiner's opinion relying on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim of service connection could be proven"). As to question # 4 above, the examiner opined that "the Veteran's chronic back pain did not aggravate his current residuals of a gunshot wound." Her only rationale was that there was no objective medical evidence to suggest worsening. But this rational and opinion ignore the Veteran's lay statements of worsening. Again, the failure to address the Veteran's lay statements makes the opinion insufficient. See id. Accordingly, remand is required to obtain addendum opinions that fully address the relevant evidence in the record and adequately connects the facts relied on by the examiner to her ultimate conclusions. 2. The claim for service connection for a right shoulder disability, to include as secondary to service-connected lumbar spine disability, is remanded. In its August 2020 Remand Order, the Board directed the VA Regional Office to obtain a VA examination assessing the Veteran's current right shoulder disability and to obtain opinions addressing the following questions: (1) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder disability is etiologically related to an in-service event, injury, or illness, to include a back injury in 1996 during basic training (2) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder disability is proximately caused by a service-connected low back condition or from residuals of a gunshot wound to the spine in 2010? (3) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder disability is aggravated by a service-connected low back condition or from residuals of a gunshot wound to the spine in 2010? For similar reasons discuss above, the opinions obtained from the VA-contracted examiner addressing the Veteran's right shoulder disability are insufficient at this time. As to question # 1 above, the examiner opined that "the Veteran's right [shoulder] degenerative arthritis, other than post-traumatic, bilateral tendonitis, is less likely as not . . . related to an in-service event, injury, or illness, to include a back injury in 1996 during basic training." This opinion is confusing to the Board. Is the examiner saying that the Veteran's diagnosed bilateral tendonitis is related to his military service back injury, but not his arthritis? Conversely, is the examiner saying neither are related to the Veteran's military service or back injury? Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings). Furthermore, the examiner's rationale does not assist the Board. The examiner only relied on a lack of medical treatment for the Veteran's right should during active service or prior to 1999. This, however, is not a valid basis, without sufficient explanation, on which to base an opinion. Nor has the examiner discussed any of the Veteran's lay statements about his right shoulder injury. Buchanan, 451 F.3d at 1336. As to question # 2 above, the Board finds the negative nexus opinion also failed to discuss the Veteran's lay statements about the onset and continuity of his right shoulder pain, or at least explain why they would not be medically accurate to rely on. See id. As to question # 3 above, the examiner opined that the "the Veteran's right [shoulder] degenerative arthritis, other than post-traumatic, bilateral tendonitis, is less likely as not . . . aggravated beyond normal progression by the service-connected low back condition." Once again, the Board is confused as to the status of the Veteran's tendonitis and whether it is related to his service-connected back disability. In addition, the only rationale offered by the examiner was that there were "no issues for right shoulder . . . diagnosed until after the gunshot wound" in 2010 "caused by overuse from a wheelchair. This is supported by a private physician notation." This rationale does not logically connect to the ultimate conclusion; it is merely a factual statement, which renders the opinion in sufficient. See Nieves-Rodriguez, 22 Vet. App. at 304. Accordingly, remand is required to obtain an addendum opinion that fully addresses the relevant evidence in the record and adequately connects the facts relied on by the examiner to her ultimate conclusions. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from the July 2021 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the effects of the Veteran's gunshot wound residuals in connection with his service-connected low back disability. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The VA examiner is requested to address the following questions: (a.) If medically reasonable to determine, what is the Veteran's baseline level of low back disability prior to the gunshot wound in 2010? Please explain your conclusion. (b.) If medically reasonable to determine, what is the nature of the Veteran's current low back disability that is separate and apart from residuals from a gunshot to the spine in 2010? Please explain your conclusion. (c.) If medically reasonable to determine, what is the likelihood that his service-connected low back condition made him more susceptible to increased residuals from the gunshot wound in 2010? Please explain your conclusion. (d.) If medically reasonable to determine, what is the likelihood that the Veteran's service-connected low back disability aggravated his current residuals of a gunshot wound? Please explain your conclusion. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) Any of the Veteran's lay statements and testimony addressing the onset of his back pain, to include severity, frequency, and duration of pain, and any lay statements and testimony addressing how his low back disability has been affected by the gunshot wound in 2010, to include worsening of the disability. (b.) A September 25, 2020, opinion from the Veteran's treating VA physician addressing the association between his low back disability and gunshot wound residuals. The examiner is reminded to consider the Veteran's lay statements regarding the nature his low back disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion that his service-connected low back disability has worsened due to his gunshot wound. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. After any additional records are associated with the claims file, obtain an addendum opinion from the July 2021 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the etiology of the Veteran's right shoulder disability. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's right shoulder disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include a fall in service? (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed right shoulder disability was caused by (proximately due to or as the result of) his service-connected low back disability? (c.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's currently diagnosed right shoulder disability was aggravated by his service-connected low back disability? The examiner is advised "aggravation" means any increase in the severity of the underlying disability beyond its natural progression. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) Any of the Veteran's lay statements and testimony addressing the onset of right shoulder disability, to include severity, frequency, and duration of pain, and any lay statements and testimony addressing how his right shoulder disability has been affected since his 2010 gunshot wound. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of right shoulder disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a right shoulder disability in service or the assertion that the Veteran's service-connected low back disability led to his currently diagnosed right shoulder disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.