Citation Nr: 21076732 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-12 267 DATE: December 27, 2021 REMANDED Entitlement to service connection for shoulder impingement syndrome claimed as right shoulder injury is remanded. Entitlement to service connection for disc degeneration claimed as a lumbar injury is remanded. REASONS FOR REMAND The Veteran had active service from April 1986 to June 1993. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Paul, Minneapolis. The Veteran testified at a Board virtual hearing before the undersigned in March 2021. A transcript of that hearing is associated with the claims file. These matters were previously remanded in an April 2021 Board decision. A review of the record since the April 2021 remand does not reflect developmental actions consistent with the directives of that remand. The RO has not complied with the instructions from the April 2021 remand. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Accordingly, remand is required to obtain adequate medical opinions that comply with the Board remand directives. 1. Entitlement to service connection for shoulder impingement syndrome claimed as right shoulder injury is remanded. The Veteran asserts that his current shoulder disability is directly related to service. See Appellate Brief Received December 2021. The Veteran says he has not recovered from the initial injury to his shoulder. He reports that he has very limited movement of the shoulder and was not afforded proper medical care for his injuries while on active duty and out to sea. See Form 9 Received March 2017. The Veteran asserts that he hurt his shoulder in the military when he was cleaning the bilge of the ship and was hit with a large nut on his shoulder. The Veteran also asserts that since that incident he cannot lift his arm above his shoulder without pain. See Notice of Disagreement Received May 2016. The Veteran says he didn't report complaints related to his back and shoulder at his separation examination because he was excited getting out of the service to go to work for the railroad. See Hearing Transcript dated March 2021. The Veteran was afforded a VA examination June 2015 for his right shoulder condition. The examiner diagnosed the Veteran's right shoulder impingement syndrome but opined that it was less likely than not related to service. The examiner noted that the Veteran was seen in service for his right shoulder for a contusion due to being hit by a small bolt and a shoulder strain from lifting weights in 1998; however, his STRs show no indication of a mechanical cause for his current impingement. In its April 2021 decision, the Board found that remand was necessary to obtain an addendum opinion since the Veteran provided additional details regarding the in-service incident in which the Veteran was hit by a shaft in service during his March 2021 Board hearing. Moreover, the Board found that the June 2015 examiner's report did not provide any details in the history section as to how or when the Veteran asserts his right shoulder onset and as the Veteran had since clarified that his shoulder pain began in and has been continuous since service, the Board found that remand was warranted. The Veteran was afforded another DBQ examination in connection with his right shoulder disability in September 2021. The examiner stated that the Veteran did not have a current diagnosis associated with the right shoulder, despite the June 2015 VA examiner's diagnosis of right shoulder impingement syndrome. The examiner also stated that the Veteran did not experience functional loss or functional impairment of the joint or extremity. Notwithstanding that, the examiner stated that the Veteran's range of motion measurements for his right shoulder were abnormal. The examiner then opined that the Veteran's current right shoulder disability is not caused by or the result of active duty. As rationale, the examiner stated the following: The veteran was seen for his lumbar and right shoulder when on active duty. Veteran separated from service 1993. From 1993 until C&P exam June 03, 2015 the record is silent. That would be 22 years (see working history). The veteran provided his history and examination. On history taking I asked the veteran had there been any surgeries, use of bracing and injections. His response was no. Once undressed it was quite apparent his left circumferential ankle was larger than right. I asked him what happened. He reported in 1997 he and his wife at that time was in a motor vehicle accident in which he had ORIF secondary to fractures of the left ankle. He also stated that his wife at the time had fracture pelvis in multiple places and a long bone fracture. The above means he was in a mass casualty situation with Advance Trauma life support measures for care. This was a serious accident and with fractured bones involved could have easily caused his problem currently addressed. His 22-year history without physician intervention treatment records is too long to associate such problems to service. During the care motor vehicle accident there would be primary and secondary surveys. He went to the operating room which means they would have ruled out spinal pathology fractures. The Veteran, through his representative, contends the September 2021 examination and opinion is inadequate. See December 2021 Appellant's Post-Remand Brief. The Board agrees. First, it is not clear whether or not the Veteran has a diagnosis of a right shoulder disability. The Board notes that the June 2015 VA examiner diagnosed the Veteran with right shoulder impingement syndrome. The September 2021 examiner's conclusions are conflicting as he states that the Veteran does not have a right shoulder disability, yet indicates that the Veteran displays abnormal range of motion in the right shoulder. Moreover, the Veteran has made ongoing complaints of pain and difficulty with movement in the right shoulder. Collectively, this evidence suggests that contrary to the examiner's notation, that the Veteran does, in fact, have some type of functional limitation or right shoulder disability. The Board notes that while pain alone may not constitute a disability, pain may rise to a level of functional impairment that impacts earning capacity, which would then qualify pain as a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Second, the rationale provided in the September 2021 opinion is flawed and contradictory. The examiner clearly states that the Veteran has a current shoulder problem, yet the examiner found that the Veteran does not have a diagnosis of a right shoulder disability which is conflicting. Moreover, the rationale provided is inadequate because it relies on the fact that the post service treatment record was silent from 1993 to June 3, 2015, without discussing the documented in-service incident where the Veteran's STRs specifically note that the Veteran was hit by a shaft on his boat and experienced pain in his right shoulder, swelling, sustained an abrasion, and had to wear a sling. The rationale did not focus on or analyze the specific documented injuries in service and instead focused on the absence of documented complaints after service without any regard to the Veteran's competent lay statements regarding ongoing pain in his right shoulder post service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). The prior remand directives made clear that the Veteran is competent to say he experienced ongoing pain in his shoulder; yet the examiner strictly relied on the absence of complaints in the record. The examiner fails to discuss the in-service incident and instead focuses on a motor vehicle accident in 1997 as the cause of the injury. For an opinion to be adequate, it must include consideration of the Veteran's statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the rationale in the September 2021 opinion reflects that the examiner failed to fully consider the Veteran's statements, the diagnosis of right shoulder impingement syndrome by the previous examiner, the record in its entirety, and specific facts and documents in the record, remand is warranted. 2. Entitlement to service connection for disc degeneration claimed as a lumbar injury is remanded. The Veteran asserts that his current back disability is directly related to service. See Appellate Brief Received December 2021. The Veteran states that the VA is too focused on the diagnosis of age-related degeneration of his back and not the injury he suffered in service. Additionally, the Veteran says the in-service injuries to his back are the root of his back problems. See Form 9 Received March 2017. The Veteran asserts that as a diesel mechanic he lifted heavy objects all the time and his lower back has consistently caused him pain. See Notice of Disagreement Received May 2016; see also Hearing Transcript dated March 2021. The Veteran's post-service treatment records include several complaints documenting issues related to lower back pain. See CAPRI Treatment Records Received March 2021. The Veteran was afforded a VA examination in June 2015 and diagnosed with degenerative arthritis of the spine. The VA examiner opined that the Veteran's back disability is less likely than not incurred in or caused by service. The examiner noted two episodes of back strain in 1991 and 1998, but that the Veteran's examinations were normal. The examiner opined that the Veteran's current complaints are of disc degeneration with back pain that is due to his age. In its April 2021 decision, the Board found that remand was necessary to obtain an addendum opinion since the June 2015 examiner did not consider the Veteran's statements that his back pain began in service and has continued since service. Finally, while the examiner noted the Veteran's 1998 back injury, the examiner did not consider the STRs documenting a neck injury in February 1989 and a car accident that resulted in limitation of duties due to back injuries sustained in October 1990. As such, the Board found that remand for an addendum medical opinion was warranted. The Veteran was afforded another examination in September 2021 to evaluate his back disability. In the September 2021 DBQ back examination, the examiner noted that the Veteran did not have a current diagnosis associated with the spine, despite the June 2015 VA examiner diagnosing the Veteran with degenerative arthritis of the spine. The examiner noted that the Veteran's range of motion was abnormal and stated that range of motion itself does not contribute to functional loss. In a September 2021 etiological opinion the examiner stated that the Veteran's current lumbar spine disability was not caused by or the result of active duty, stating the same rationale detailed in the section above for the right shoulder disability. The Veteran, through his representative, contends the September 2021 examination and opinion is inadequate. See December 2021 Appellant's Post-Remand Brief. The Board agrees and finds that for the same reasons set forth above, the back examination and opinion are inadequate. Again, it is not clear whether or not the examiner found the Veteran has a current back disability as the examiner states that the Veteran does not have a spine or back disability, yet indicates that the Veteran displays abnormal range of motion in the spine. Given the Veteran's ongoing complaints of back pain, the evidence suggests the Veteran does, in fact, have some type of functional limitation or back disability. Likewise, the rationale provided in the September 2021 opinion is flawed and contradictory. The language used by the examiner in the rationale clearly states that the Veteran has a current back problem, yet the examiner found that the Veteran does not have a diagnosis of a spine or back disability which is conflicting. Moreover, the rationale provided is inadequate because it relies on the fact that the post service treatment record was silent from 1993 to June 3, 2015, without discussing the documented in-service incidents in the Veteran's STRs specifically noting several incidents related to or potentially associated with trauma to the Veteran's back. The rationale did not focus on or analyze the specific documented injuries in service and instead focused on the absence of documented complaints after service without any regard to the Veteran's competent lay statements regarding ongoing pain in his back post-service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). The prior remand directives stated the Veteran is competent to say he experienced ongoing pain in his back or otherwise, but it appears that the examiner strictly relied on the absence of complaints in the record post service. Based on the rationale provided, the examiner did not discuss the in-service incidents and instead focused on a motor vehicle accident in 1997 to which he attributes any claimed injury. For an opinion to be adequate, it must include consideration of the Veteran's statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the rationale in the September 2021 opinion reflects that the examiner failed to fully consider the Veteran's statements, the record and specific facts and documents in the record, remand is warranted. The matters are REMANDED for the following action: 1. Provide the Veteran with an appropriate examination by an examiner other than the examiner who conducted the September 2021 VA examination and obtain a medical opinion on the etiology of his claimed right shoulder disability. This entire remand decision and 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 is asked for the following: (a.) Please identify all right shoulder related disabilities by either (1) diagnosis or (2) functional impairment that existed at any point during the appeal period. The Board notes that as the previous June 2015 VA examiner diagnosed the Veteran with right shoulder impingement syndrome, this does in fact qualify as a current right shoulder disability for VA purposes. Even if the Veteran does not display pain or symptoms in his right shoulder at the time of the examination, the examiner must consider any disability he has related to his right shoulder at any time during the period on appeal. The examiner is reminded that pain can constitute disability if it causes impairment in earning capacity. The examiner must address the Veteran's reported symptoms of pain in his right shoulder during the period on appeal. (b.) For each identified right shoulder disability, including right shoulder impingement syndrome, opine whether it is at least as likely as not (i.e., a 50 percent probability or greater) had its onset during or is otherwise related to the Veteran's military service. If any such diagnosed disability cannot be regarded as having had its onset during active service, the examiner should explicitly indicate so. The examiner is asked to explicitly indicate whether it is at least as likely as not that the ongoing shoulder pain that the Veteran currently experiences is the same as that which he experienced in service. In providing an opinion, the examiner must address the following: (1) the Veteran's statements and testimony regarding his injuries in service and his assertions of ongoing problems since service. Specifically address the assertions regarding an incident during active duty when a coupling on the shaft of the ship that spins around caught the Veteran's right shoulder and threw him up against the bulkhead and lacerated his shoulder preventing him from being able to move his shoulder and causing ongoing shoulder pain. (2) The STRs noting a right shoulder injury to include: (a)an undated treatment note that contains a stamp that says Douglas R. Johnson, that states that the Veteran complained that his right arm was hit by a shaft on his boat and further notes that he experiences pain when he tries to lift his arm above shoulder level, (b) an August 1987 STR that states that the Veteran complains of trauma to his right shoulder as a result of being struck by a shaft and further states that the Veteran experienced swelling and sustained an abrasion to the right shoulder and had to wear a sling. The Veteran is competent to say he experienced shoulder pain during service and ongoing shoulder pain following service even if there is no documentation of such complaints in his post-service treatment records immediately following active duty service. The examiner should acknowledge and consider the fact that the reason the Veteran did not report complaints related to his shoulder during his separation examination was because he did not want it to interfere with a pending employment opportunity. The examiner should also set forth medical reasons for accepting or rejecting the Veteran's reports (lay observations). 2. Provide the Veteran with an examination by an examiner other than the examiner who conducted the September 2021 VA examination and obtain a medical opinion on the etiology of his claimed back disability. This entire remand decision and 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. The examiner is asked for the following: (a.) Please identify all back related disabilities by either (1) diagnosis or (2) functional impairment at any point during the appeal period. The Board notes that as the previous June 2015 VA examiner diagnosed the Veteran with degenerative arthritis of the spine, this does in fact qualify as a current back disability for VA purposes. Even if the Veteran does not display pain or symptoms in his back at the time of the examination, the examiner must consider any disability he has related to his back at any time during the period on appeal. The examiner is reminded that pain can constitute disability if it causes impairment in earning capacity. The examiner must address the Veteran's reported symptoms of pain in his back during the period on appeal. (b.) For each identified back disability diagnosed, including degenerative arthritis of the spine, opine whether it is at least as likely as not (i.e., a 50 percent probability or greater) had its onset during or is otherwise related to service the Veteran's military service. If any such diagnosed disability cannot be regarded as having had its onset during active service, the examiner should explicitly indicate so. The examiner is asked to explicitly indicate whether it is at least as likely as not that the ongoing back pain and back disabilities that the Veteran currently experiences is the same or a manifestation of that which he experienced in service. In providing an opinion, the examiner must address the following: (1) the Veteran's statements and testimony regarding his multiple back injuries in service and his assertions of ongoing problems since service. (a) Specifically, address the testimony that he was diagnosed with a lower lumbar strain after he injured his back when lifting up hatches at the general quarters during active duty. (b) Also, specifically address the testimony that the Veteran injured his back again when lifting weights while on the ship during active duty service when they were at sea. (c) Address the Veteran's testimony that he experiences back pain in the same spot where he initially injured his back in service. (2) STRs noting a back injury to include the following: (a) an incident dated February 1989 that notes that on this day the Veteran complained of trauma to the head and neck pain and experienced tenderness in the C-spine, discomfort, and spine deformity after he ran a ladder into a closed hatch (b) an April 1988 STR that states that the Veteran experienced tenderness and complained of lower back pain relating to lifting weights (c) an October 1990 STR note from the ambulatory care center that indicates that while in service, the Veteran was in a car accident and hurt his back. (Continued on the next page) The Veteran is competent to say he experienced back pain/back strain during service and ongoing back pain following service even if there is no documentation of such complaints in his post-service treatment records immediately following active duty service. The examiner should acknowledge and consider the fact that the reason the Veteran did not report complaints related to his back during his separation examination was because he did not want it to interfere with a pending employment opportunity. The examiner should also set forth medical reasons for accepting or rejecting the Veteran's reports (lay observations). Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, Associate 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.