Citation Nr: 21072434 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-47 817 DATE: December 3, 2021 REMANDED Service connection for a low back disability is remanded. Service connection for a bilateral shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1999 to November 1999, with additional service in the Army Reserve. The Veteran testified before the undersigned Veterans Law Judge during a February 2020 hearing and a transcript is of record. These matters are on appeal from a June 2016 rating decision. In an April 2020 decision, the Board remanded the claims to afford the Veteran VA examinations. The Agency of Original Jurisdiction (AOJ) has done so. In a July 2021 decision, the Board remanded the claims again to afford the Veteran additional VA medical opinions. The Board will discuss the AOJ's compliance with its instructions below. 1. Service connection for a low back disability is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in July 2020. The clinician opined that it was less likely than not that the Veteran's low back disability was incurred in or caused by active duty service, but this opinion was based solely on the fact that low back symptoms are not mentioned in service treatment records, which is not a sufficient rationale, particularly when the Board specifically instructed the clinician that "a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding." For this reason, the Board remanded this issue in July 2021 to obtain an additional medical opinion, with the same instruction to the clinician. The Veteran was afforded an additional VA examination in August 2021. Unfortunately, this clinician's opinion relied on an effectively identical rationale. Although the Board regrets the additional delay in this case, because there was again not substantial compliance with the remand directives, another remand is again necessary to obtain an adequate medical opinion. See Stegall v. West, 11 Vet. App. 268 (1998). The Board emphasizes that it is not determining whether or not the Veteran's statements are credible at this time, as the additional development set forth in the directives below could impact that determination. 2. Service connection for a bilateral shoulder disability is remanded. The Veteran was afforded a VA examination in July 2020. The clinician opined that it was less likely than not that the Veteran's shoulder disabilities were incurred in or caused by active duty service, but this opinion was based solely on the fact that shoulder symptoms are not mentioned in service treatment records, which is not a sufficient rationale, particularly when the Board specifically instructed the clinician that "a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding." For this reason, the Board remanded this issue in July 2021 to obtain an additional medical opinion, with the same instruction to the clinician. The Veteran was afforded an additional VA examination in August 2021. Unfortunately, this clinician's opinion relied on an effectively identical rationale. Although the Board regrets the additional delay in this case, because there was again not substantial compliance with the remand directives, another remand is again necessary to obtain an adequate medical opinion. See Stegall, 11 Vet. App. 268. The Board emphasizes that it is not determining whether or not the Veteran's statements are credible at this time, as the additional development set forth in the directives below could impact that determination. The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of the Veteran's low back disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether it is as likely as not (a probability of 50 percent or greater) that the Veteran has any current low back disability that had its origin in service, had its onset within one year of separation from active duty service, or is related to the Veteran's active service. Although an independent review of the claims file is required, the Board calls the clinician's attention to the Veteran's February 2020 testimony regarding the onset of her symptoms. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 2. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of the Veteran's bilateral shoulder disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether it is as likely as not (a probability of 50 percent or greater) that the Veteran has any current bilateral shoulder disability that had its origin in service, had its onset within one year of separation from active duty service, or is related to the Veteran's active service. Although an independent review of the claims file is required, the Board calls the examiner's attention to the Veteran's February 2020 testimony regarding the onset of her symptoms. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). The AOJ is advised that the Board has instructed the clinicians that silence in treatment records cannot serve as the sole basis for a negative finding; any opinion relying on that rationale is inadequate. 4. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.