Citation Nr: 21076014 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-07 691 DATE: December 22, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a neck disability, to include as secondary to a left shoulder disability, is remanded. Entitlement to service connection for a right shoulder disability, to include as secondary to a left shoulder disability, is remanded. Entitlement to an increased rating in excess of 20 percent for a left shoulder disability is remanded. Entitlement to an increased rating in excess of 10 percent for scars, to include on the left shoulder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from October 1962 to July 1965. With specific regards to the Veteran's representation, the Board notes that in April 2019, the Veteran contacted the VA to unilaterally revoke his private power of attorney (POA) from John S. Berry, Esq., and noted that he wished to have the Texas Veteran's Commission represent him. This notice from the Veteran was followed by an October 2019 letter from the office of John S. Berry, Esq, noting the cancellation of their POA with the Veteran. Since that time, however, no further actions regarding establishing a POA were taken by the Veteran, to include submitting a properly executed VA Form 21-21. As such, in October 2021, the Board sent the Veteran a POA Clarification letter requesting clarification as to his representation. The letter clearly indicated that if no response was received from either the Veteran or his new, clarified representative within 30 days of the letter, VA would assume that the Veteran would represent himself as no new properly executed POA for the Texas Veteran Commission was of record, and the Board would proceed with adjudication. As no response to the letter has been received, consistent with the terms therein, the Board shall recognize the Veteran as pro se (as reflected on the title page). 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for a neck disability, to include as secondary to a left shoulder disability, is remanded. 3. Entitlement to service connection for a right shoulder disability, to include as secondary to a left shoulder disability, is remanded. With regard to the Veteran's claims for service connection for a back, neck, and right shoulder disabilities, the Board finds that VA examinations already of record to be inadequate. When medical evidence is incomplete, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Therefore, additional development is required for the Board to fulfill its duty to the Veteran. Specifically, with regard to all three claims for service connection, the Board notes that the Veteran was initially afforded a VA examination and nexus opinion in April 2014. In that examination report, the VA examiner provided a negative secondary nexus opinion, noting that the Veteran's diagnosed back, neck, and right shoulder disability was less likely than not caused by the Veteran's service-connected left shoulder condition. A close review of the nexus opinion reveals no further discussion were made with regard to a direct nexus or secondary aggravation. Here, the examiner only noted that the Veteran's back, neck, and right shoulder conditions has no "relationship" to his service-connected left shoulder condition. In the last Board remand in June 2020, the Board found that the April 2014 VA examination to be inadequate and remanded the claims for an addendum opinion. In June and August 2021, the Veteran was afforded VA examinations and addendum opinions with regards to all three condition. A close view of these opinions, however, reveals that they are again inadequate. Specifically, while the VA examiner addresses all three claimed disabilities with regards to direct service connection (finding against the claims), the examiner failed to address secondary aggravation. Therefore, as neither the April 2014 nor the most recent June/August 2021 VA opinions address secondary aggravation, such opinion remains in want, and remand is again required for the VA to fulfills its duty to the Veteran. With specific regards to the Veteran's claim for a back disability, the Veteran was most recently afforded a VA examination in June 2021 to address the nature and etiology of his diagnosed back disability. Upon examination and review of the Veteran's claim file and medical history, the VA examiner provided a negative nexus opinion finding that the Veteran's back disability was not caused by the Veteran's claimed in-service football injury. The Board finds that such opinion is considered incomplete as the examiner failed to address, or at least demonstrate consideration of the Veteran's lay assertions of his continued back pain since his injury during service. Here, while the VA examiner noted the Veteran's in-service football injury in the service treatment records (STRs), the examiner noted only reliance on the lack of further treatment during service, with no discussion or demonstrated consideration of the Veteran's lay assertions. As such, the Board finds that such opinion to be inadequate, and further remand discussion is required. 4. Entitlement to an increased rating in excess of 20 percent for a left shoulder disability is remanded. With regard to the claim for increased rating for a left shoulder condition, the Board notes that the Veteran was provided a VA examination in June 2021. However, after a review of the examination report, the Board finds that examination report to be inadequate. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Therefore, additional development is required for the Board to fulfill its duty to the Veteran. The Board finds that a close review of the June 2021 VA examination shows some inconsistencies with regard to the VA examiner's analysis of the nature and severity of the Veteran's left shoulder condition. Specifically, with regards to flare-ups, in the beginning of the report, the VA examiner noted the Veteran's subjective complaints, which the examiner noted to be "severe"; however, upon reaching the flare-up section of the examination regarding functional loss, the examiner noted no functional loss due to flare-ups. The Board finds that, while it is plausible that flare-ups may not cause further functional loss with regards to actual range of motion, such finding without explanation is incompatible with earlier notations of "severe" flare-ups in the report. The Board finds that such findings, especially in light of no substantive rationale provided by the examiner to render such examination inadequate, and further development is required for the VA to fulfill its duty to the Veteran. 5. Entitlement to an increased rating in excess of 10 percent for scars, to include on the left shoulder is remanded. The Board notes that the Board has remanded the claimed for increased rating for a left shoulder disability herein. As ratings for this disability could also affect the Veteran's claim for a scar disability, the Board finds that the claims are inextricably intertwined. Therefore, remand is required for this claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from any private physicians for treatment not already of record. 3. Then, schedule the Veteran for a VA examination for back disability. The examiner must review the claims file and should note that review in the report. All testing deemed necessary should be performed. A complete rationale for all opinions should be provided in the examination report. The examiner is asked to provide opinions regarding the nature and etiology of the claimed back disability, to include a current diagnosis. The examiner should opine for each disability found or diagnosed during the appeals period, whether it is at least as likely as not (50 percent or greater probability) that any back disability was incurred in service or is the result of any incident in service, to explicitly include the Veteran's inservice football injury noted on his STRs. Additionally, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any back disability is due to or the result of any service-connected disabilities, to include left shoulder disability. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any back disability has been aggravated (permanently worsened beyond the natural progress of the disorder) by service-connected disabilities, to include left shoulder disability. The examiner should reconcile the opinion with previous opinions and should discuss prior diagnoses. The examiner must also explicitly demonstrate consideration of the Veteran's lay assertions of continued back pain since service. 4. Then, schedule the Veteran for a VA examination for neck disability. The examiner must review the claims file and should note that review in the report. All testing deemed necessary should be performed. A complete rationale for all opinions should be provided in the examination report. The examiner is asked to provide opinions regarding the nature and etiology of the claimed neck disability, to include a current diagnosis. The examiner should opine for each disability found or diagnosed during the appeals period, whether it is at least as likely as not (50 percent or greater probability) that any neck disability was incurred in service or is the result of any incident in service. Additionally, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any neck disability is due to or the result of any service-connected disabilities, to include left shoulder disability. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any neck disability has been aggravated (permanently worsened beyond the natural progress of the disorder) by service-connected disabilities, to include left shoulder disability. The examiner should reconcile the opinion with previous opinions and should discuss prior diagnoses. 5. Then, schedule the Veteran for a VA examination for right shoulder disability. The examiner must review the claims file and should note that review in the report. All testing deemed necessary should be performed. A complete rationale for all opinions should be provided in the examination report. The examiner is asked to provide opinions regarding the nature and etiology of the claimed right shoulder disability, to include a current diagnosis. The examiner should opine for each disability found or diagnosed during the appeals period, whether it is at least as likely as not (50 percent or greater probability) that any right shoulder disability was incurred in service or is the result of any incident in service. Additionally, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any right shoulder disability is due to or the result of any service-connected disabilities, to include left shoulder disability. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any right shoulder disability has been aggravated (permanently worsened beyond the natural progress of the disorder) by service-connected disabilities, to include left shoulder disability. The examiner should reconcile the opinion with previous opinions and should discuss prior diagnoses. 6. Provide the Veteran with an appropriate examination to determine the severity of the service-connected left shoulder disability. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must comment upon any left shoulder pain upon active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must also include findings related to whether the Veteran has unfavorable ankylosis, limitation of abduction, and impairment of the humerus-to include fibrous union, nonunion (false flail joint), or loss of head of (flail shoulder). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.