Citation Nr: 21071372
Decision Date: 11/30/21	Archive Date: 11/30/21

DOCKET NO. 14-02 784
DATE: November 30, 2021

REMANDED

Entitlement to service connection for a bilateral shoulder disability is remanded.

REASONS FOR REMAND

Having reviewed the record, the Board finds remand is again warranted.  Subsequent to the August 2019 Joint Motion for Partial Remand (JMPR), the Board has attempted to obtain adequate examinations addressing whether the Veteran's current shoulder disability is related to active service, to include March 1985 shoulder cramps and pain, or whether it is proximately due to or aggravated by a service-connected cervical spine disability.  

To date, the September 2020, December 2020, and August 2021 VA examinations have not provided well-reasoned responses that would enable the Board to make an informed decision on the claim.  The December 2020 VA examiner indicated that she would merely be speculating as to whether an in-service bike accident caused his current shoulder disability.  The August 2021 VA examiner's rationale was that there was no documentation found to support that bilateral shoulder arthritis worsened in relation to a service-connected cervical spine disorder.  In finding that the Veteran's shoulder disability was not at least as likely as not aggravated by the cervical spine disability, her rationale was that it would be speculation to delineate whether shoulder arthritis or radiculopathy contribute to the Veteran's pain.  Neither the December 2020 or August 2021 VA examiner clarified whether their inability to provide opinions without speculation is due to a deficiency in the state of general medical knowledge or due to the examiner lacking the knowledge or training.

Of particular concern, the Board notes that the December 2020 and August 2021 VA examiners have made statements indicating that they are not able to provide informed, well-reasoned opinions on the claim.  Specifically, the December 2020 examiner stated that she was taxed beyond her tolerance with the questions and examination.  Further, the August 2021 VA examiner stated that her expertise was limited to family medicine, that this case has been addressed on multiple occasions by different providers at that specific facility, and that additional opinions would likely result in redundant responses at best and futile responses at worse.  In light of these comments, the Board will seek an independent opinion under 38 U.S.C.    § 5109. 

Any outstanding VA treatment records from March 2021 to present should be obtained and associated with the record. 

The matter is REMANDED for the following actions:

1. Obtain the Veteran's VA treatment records for the period from March 2021 to present.

2. The RO should follow its established procedures for requesting an advisory opinion furnished by a medical school, university, clinic, or medical institution (i.e., an independent medical expert who is not an employee of the Department).

Pursuant to 38 U.S.C. § 5109, the file should be sent to an orthopedist (M.D.) to offer an independent medical opinion addressing the following questions: 

(a)	Whether the bilateral shoulder disability is at least as likely as not related to active service to include in-service March 1985 shoulder cramps and pain.

(b)	Whether the bilateral shoulder disability is at least as likely as not proximately due to service-connected cervical spine disability.

(c)	Whether the bilateral shoulder disability is at least as likely as not aggravated beyond its natural progression by service-connected cervical spine disability.

If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

 

 

TANYA SMITH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Vang, 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.