Citation Nr: 21069697 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 12-10 678 DATE: November 19, 2021 REMANDED Entitlement to service connection for right shoulder disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1976 to November 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Notably, in a March 2017 Board decision, the Board noted that the issue of service connection for right shoulder disability had not been formally appealed. The Veteran appealed this matter to the United States Court of Appeals for Veterans Claims (Court) and, in a December 2017 Joint Motion for Partial Remand (JPMR) the parties agreed it had been properly appealed so the matter needed to be addressed by the Board. The Board subsequently remanded the matter in June 2018 and March 2020 for additional development. 1. Entitlement to service connection for right shoulder disability is remanded. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Here, the VA medical opinion (VAMO) obtained on remand is inadequate; further development is necessary to obtain an addendum opinion. In March 2020, the Board remanded the claim for service connection for a right shoulder disability for a VA medical examination. In February 2021, VA afforded the Veteran an examination where he asserted his in-service injury constituted times where he experienced shoulder pain after 24 hours of lifting, carrying, and loading live tank rounds for tanks in DMZ in Korea. He was unable to move his shoulder the next day. He denied seeking treatment at the time. In the February 2021 VAMO, the examiner concluded the veteran's right shoulder disability is less likely than not had its onset in service, or is otherwise related to an in-service injury, event, or disease during service, to include as caused by heavy lifting during service. The rationale was that the chart was silent for any symptoms, evaluation, or treatment of right shoulder pain/condition after discharge until October 2006 and x-rays were negative. Even if the veteran sustained a rotator cuff tear during service, the examiner stated it would have been noted on subsequent radiology studies many years later. Arthritis can develop after a long-standing rotator cuff tear. The torn rotator cuff can no longer hold the head of the humerus in the glenoid socket, and the humerus can move upward and rub against the acromion. However, x-rays obtained over 20 years later in 2004 and 2006 did not indicate any degenerative changes. Degenerative changes were not noted until 2009. In rendering the opinion, the examiner noted the veteran's entrance and separation exams were negative for any right shoulder condition. Chart review reflected two instances where the veteran was evaluated and treated for right shoulder pain. The first instance was in June 1977 where he reported complaints of right shoulder pain and an inability to lift his arm overhead; he was placed on a lifting restriction profile for three days. The second occasion occurred in January 1978 where he was evaluated for right shoulder pain and weakness, existing for the prior two weeks. He exhibited full range of motion (ROM) with minimal click or pop and only slight tenderness to palpation. No x-rays or MRI obtained. The examiner also noted the veteran reported injuring his shoulder again in 2017-2018 while working at DHL and obtained treatment at Emerge Ortho; however, those notes were not available for review. At that time, he was diagnosed with right rotator cuff tear, labral tear, and bicep tear per MRI. Yet, he never received surgery for the injury. Clinical exam findings the day of the exam reflected residual injury. The Board finds the February 2021 VAMO is inadequate for the following reasons. While the veteran did not submit a request for VA to assist with obtaining the private medical treatment records from Emerge Ortho, he did identify them at the VA examination. Decisions of the Board must be based on all the evidence available. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The duty to assist includes the duty to request information which may be pertinent to the claim and to develop pertinent facts by conducting a thorough medical examination. See Littke v. Derwinski, 1 Vet. App. 90 (1990). In general, an adequate examination requires that a disability be viewed in relation to its whole history, Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Therefore, the AOJ should request all outstanding private medical records to include those of Emerge Ortho. Also, February 2021 VAMO included a rationale that inappropriately relied almost exclusively on the absence of post-service evidence of documented complaints or findings to support the conclusion, and essentially dismissed the Veteran's reported history of symptoms without any explanation. The Veteran is competent to report his experiences, injuries, and treatment. See Layno v. Brown, 6 Vet. App. 465 (1994). The examiner is not required to accept the Veteran's theory that his military service caused his current right shoulder disability, or that he had symptoms associated with the disability during or following military service if this is incongruous with the record; however, the examiner is required to fully explain why she disagreed with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion. Notably, in the stated rationale, the examiner did not relay what the medical evidence showed, such as the Veteran reporting that he continued to have right shoulder pain since service. The medical opinion is essentially bereft of any meaningful findings in formulating the negative conclusion reached. It is noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Further, "[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Remand, therefore, is necessary. Stegall, 11 Vet. App. 268 (1998). 2. Entitlement to a TDIU is remanded. As decision on the claim for service connection for a right shoulder disability could significantly impact a decision on entitlement to a TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, consideration of the matter is differed. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from February 2021 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for Emerge Ortho. Make two requests for the authorized records from Emerge Ortho unless it is clear after the first request that a second request would be futile. (continued next page) 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's right shoulder disability is at least as likely as not related to service, to include as due to lifting, carrying and loading live tank rounds for tanks in DMZ in Korea. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pendleton, N. 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.