Citation Nr: 21076391 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-61 799 DATE: December 23, 2021 REMANDED Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for left rotator cuff tear with traumatic arthritis, bone spur on rotator cuff, and nerve impingement syndrome, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1964 to November 1967. These issues come before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The issues were previously before the Board, most recently in February 2021, when they were remanded for additional evidentiary development. 1. Entitlement to service connection for a cervical spine condition is remanded. 2. Entitlement to service connection for left rotator cuff tear with traumatic arthritis, bone spur on rotator cuff, and nerve impingement syndrome, is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issues of entitlement to service connection for a cervical spine condition and left rotator cuff tear with traumatic arthritis, bone spur on rotator cuff, and nerve impingement syndrome. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In February 2021, the Board directed that the Veteran was already found to be truthful and credible in his testimony by the undersigned Veterans Law Judge. The VA examiner's medical opinion must be based on the Veteran's reports of symptoms and not attempt another credibility determination. It is the Board's legal responsibility to determine the credibility of lay statement, not the prerogative of the VA examiner, a medical expert. However, a credibility determination is precisely what the April 2021 VA examiner provided, writing, in part, "Since his above assertions have been shown not to be credible, then his credibility has to question in other situations" and "Please refer to the above medical opinion regarding evidence against the veteran's credibility in his recounting of events, since non-credible statements in some instances render the credibility of other statements suspect." A new VA medical opinion, without a legal credibility determination, is warranted. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician, preferably a different clinician than provided the April 2021 VA medical opinion, regarding the Veteran's cervical spine condition. The examiner must review the claims file, including a copy of this remand order. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: (a.) Is the Veteran's cervical spine condition at least as likely as not related to service, including multiple in-service motor vehicle accidents (MVA)? Provide a rationale to support the opinion. At the April 2019 Board hearing, the Veteran testified to two MVAs. His first accident happened about a year into his service, when he was rear-ended by a drunk driver and "everybody in the car had whiplash." He testified that he was not treated at a hospital, given medication, and did not remember ever wearing a neck brace, but he was on sick call for one to two weeks and was told to do exercises. In providing the requested opinion, consider the Veteran's description of in-service injury and symptoms as well as his post-service symptoms. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Obtain an addendum opinion from an appropriate clinician, preferably a different clinician than provided the April 2021 VA medical opinion, regarding whether the Veteran's left rotator cuff tear with traumatic arthritis, bone spur on rotator cuff, and nerve impingement syndrome. Schedule the Veteran for a VA examination only if needed to answer the following questions. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: (a.) Is left rotator cuff tear with traumatic arthritis, bone spur on rotator cuff, and nerve impingement syndrome at least as likely as not related to service, including MVAs? Provide a rationale to support the opinion. At the April 2019 Board hearing, the Veteran testified to two MVAs. His first accident happened about a year into his service, when he was rear-ended by a drunk driver and "everybody in the car had whiplash." He testified that he was not treated at a hospital, given medication, and did not remember ever wearing a neck brace, but he was on sick call for one to two weeks and was told to do exercises. The Veteran was found to be truthful and credible in his testimony by the undersigned Veterans Law Judge. The VA examiner's medical opinion must be based on the Veteran's reports of symptoms and not attempt another credibility determination. In providing the requested opinion, consider the Veteran's description of in-service injury and symptoms as well as his post-service symptoms. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.