Citation Nr: A21019693 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 201015-113154 DATE: December 10, 2021 REMANDED The issue of entitlement to service connection for a left shoulder condition is remanded. The issue of entitlement to service connection for right leg varicose veins is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) in the United States Naval Reserves from March 1955 to December 1956 and December 1958 to March 1963, on active duty in the United States Navy from December 1956 to December 1958, and on ACDUTRA or INACDUTRA in the Army National Guard from April 1976 to December 1997. On April 19, 2014, the Department of Veterans Affairs (VA) received a formal claim from the Veteran seeking, among other issues, entitlement to service connection for a left shoulder condition and right leg varicose veins. In June 2015, a VA Regional Office (RO) issued a rating decision denying the Veteran's claim and, in November 2015, the Veteran submitted a timely notice of disagreement. A statement of the case (SOC) was later issued and the Veteran perfected his appeal in December 2016. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law created a new framework for Veterans dissatisfied with the VA's decisions on their claims to seek review. About one month later, in September 2017, the Board remanded the issues of entitlement to service connection for a left shoulder condition and right leg varicose veins for additional development. These issues were addressed by the Board via additional remands in July 2018 and April 2019. The Board's September 2017, July 2018, and April 2019 remands were issued pursuant to the Legacy system of appeals. Following the April 2019 remand, the Agency of Original Jurisdiction (AOJ) issued a supplemental SOC (SSOC) on March 26, 2020 which continued the denials of service connection for a left shoulder condition and right leg varicose veins. In response to this SSOC, the Veteran filed a VA Form 20-0996, Decision Review Request, on April 7, 2020 seeking Higher-Level Review of the left shoulder and right leg varicose vein issues. As the Veteran's VA Form 20-0996 was received within 60 days of the issuance of the March 26, 2020 SSOC, the Veteran opted his claim into the new AMA system of appeals. See 38 C.F.R. § 3.2400(c)(2). Consistent with his request for Higher-Level Review, on August 26, 2020, a VA RO issued an AMA rating decision that denied service connection for a left shoulder condition and right leg varicose veins. Notification of this decision was sent to the Veteran on September 1, 2020. Thereafter, on October 15, 2020, VA received a completed VA Form 10182, NOD, from the Veteran seeking Board review of the August 26, 2020 decision regarding the issues of entitlement to service connection for a left shoulder condition and right leg varicose veins. On his VA Form 10182, the Veteran selected the Direct Review Option. On January 21, 2021, the Board issued a decision denying service connection for both issues. The Veteran appealed the January 2021 decision with respect to both issues to the United States Court of Appeals for Veterans Claims (CAVC). In a July 2021 Joint Motion for Remand (JMR), the Secretary and the Veteran (the parties) moved the CAVC to vacate the January 2021 decision regarding both appealed issues. The CAVC granted the JMR in a July 2021 Order, and the issues of service connection for a left shoulder condition and right leg varicose veins have returned to the Board. Service Connection In their July 2021 motion, the parties agreed that the January 2021 Board did not provide an adequate statement of reasons or bases in support of its decision as the Board failed to address arguments the Veteran explicitly raised. These arguments pertained to the adequacy of March 2020 VA medical opinions concerning the etiology of a current left shoulder condition as well as current right leg varicose veins. Additionally, the parties directed the Board to make a credibility finding in regard to the Veteran's lay statements (1) identifying varicose veins in service, and (2) reporting continuity of symptomatology since service prior to issuing a decision on the merits of the Veteran's appeal. In addressing the concerns raised by the parties' July 2021 JMR, the Board first notes that when VA orders a medical examination, it must conduct a "thorough and contemporaneous [one]." Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). All medical examinations ordered by VA must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided."). A medical opinion is adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Additionally, a thorough and adequate examination must consider all other relevant evidence of record, including lay statements. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). An adequate medical opinion does not contain only data and conclusions, "but also a reasoned medical explanation connecting the two." Id. Ultimately, if an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2; see Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return inadequate examination reports); Hicks v. Brown, 8 Vet. App. 417, 421 (1995) (inadequate medical evaluation frustrates judicial review). Here, the Board acknowledges that the Veteran has been afforded one VA examination with a corresponding opinion and two VA addendum opinions for both the left shoulder and right leg varicose veins. However, the Board concludes that none of the VA medical opinions of record with respect to each disability are adequate, warranting remand. 1. The issue of entitlement to service connection for a left shoulder condition is remanded. As an initial matter, the Board notes that a VA medical opinion concerning the left shoulder was initially provided in April 2018 in conjunction with a VA shoulder conditions examination. In July 2018, the Board deemed this opinion inadequate for adjudicative purposes as no rationale was provided. Thereafter, VA provided an addendum opinion concerning the left shoulder in September 2018. But, in April 2019, the Board deemed this addendum opinion to also be inadequate for adjudicative purposes. In evaluating the Veteran's claim in the instant decision, the Board does not disturb these prior findings of inadequacy. Accordingly, the only remaining opinion of record unaddressed is the second VA addendum opinion issued in March 2020. On that occasion, a VA clinician opined that it was less likely than not that the Veteran's current left shoulder condition began during active service or was related to an incident of serviceto include a left shoulder injury documented during a verified period of ACDUTRA in April 1996. Additionally, the clinician opined that it was less likely than not that the Veteran's current arthritic symptoms began within 1 year of discharge from active service. In evaluating the March 2020 opinion, the Board concludes that it is also inadequate for adjudicative purposes. Specifically, in providing a rationale for her opinion, the clinician acknowledged the Veteran's report of shoulder pain in April 1996 and a prior shoulder incident in 1993, but stated that there was no documentation to support persistent pain in the shoulder. Specifically, the clinician noted that the Veteran's service treatment records did not support ongoing visits or treatment for a left arm condition, and there were no records shortly after leaving the military to support an ongoing left shoulder condition. Thus, the clinician opined that the Veteran's left shoulder condition less likely than not was caused by active-duty service or related to an incident in service because it would not make anatomical sense for it to manifest bilaterally as mild bilateral chromic clavicular joint degenerative change, right greater than left, 22 years after injury in 1996. However, the clinician's dismissal of the Veteran's lay statements coupled with reliance on the absence of evidence in the Veteran's service treatment records to formulate a negative opinion is contrary to the CAVC's holding in Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Further, similar to the inadequate April 2018 and September 2018 opinions, the March 2020 clinician did not address the possible etiology of the Veteran's current left shoulder condition. Thus, a contemporaneous opinion must be obtained which (1) addresses the etiology of the Veteran's currently diagnosed left shoulder osteoarthritis, and (2) provides an adequate rationale in support of its conclusions as VA has not yet fulfilled its duty to assist. See Barr, supra. 2. The issue of entitlement to service connection for right leg varicose veins is remanded. Similar to the above issue of service connection for a left shoulder condition, the Board notes that VA medical opinions provided in April 2018 and September 2018 addressing the nature and etiology of the Veteran's right leg varicose veins were already deemed inadequate by the Board in July 2018 and April 2019, respectively. Again, the Board does not disturb these findings of inadequacy at the present time. Accordingly, the only remaining VA medical opinion of record not yet addressed by the Board was a second addendum opinion issued in March 2020. In March 2020, a VA clinician opined that it was less likely than not that the Veteran's right leg varicose veins began during active service or were related to an incident of service. Despite the clinician noting that she considered the Veteran's lay statements of continuous symptoms of pain, the Board finds the March 2020 opinion to be inadequate because the clinician relied on the absence of evidence in the Veteran's service treatment records to formulate a negative opinion and did not address the possible etiology of the Veteran's right leg varicosity. Thus, remand for a contemporaneous opinion with an adequate rational is necessary as VA has not yet fulfilled its duty to assist. See Barr, supra. The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to an appropriate VA medical examiner to issue a medical opinion regarding the Veteran's claim of service connection for a left shoulder condition. The entire claims file, including a copy of this Remand, must be made available to, and must be reviewed by, the examiner providing the opinion. If, and only if, the examiner determines that a physical examination should be conducted, one should be scheduled. Thereafter, the examiner should address the following: (a.) Please identify any current disability of the left shoulder. "Current" is defined as any condition identified since the filing of the claim in April 2014 to the present. "Disability" includes any diagnosable conditions as well as pain or symptoms that are not diagnosable but, nonetheless, cause functional impairment. (b.) For each disability identified in part (a.), please comment on the etiology of the disability and state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current left shoulder disabilities were incurred in, caused by, or aggravated by service. In fulfilling part (b), please explicitly address the Veteran's statements that his left shoulder symptoms began in service, and that these symptoms have continued uninterrupted to the present. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim in April 2014 in providing the opinions requested above. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resort to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information or evidence, the limits of medical knowledge, etc.). 2. Forward the Veteran's claims file to an appropriate VA medical examiner to issue a medical opinion regarding the Veteran's claim of service connection for right leg varicose veins. The entire claims file, including a copy of this Remand, must be made available to, and must be reviewed by, the examiner providing the opinion. If, and only if, the examiner determines that a physical examination should be conducted, one should be scheduled. Thereafter, the examiner should address whether it is at least as likely as not ((50 percent probability or more) that the Veteran's current right leg varicose veins were incurred in, caused by, or aggravated by service. In providing a response to the above prompt, the examiner must explicitly address the Veteran's testimony that he experienced symptoms of right leg pain and heaviness that began in service and continued to the present. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim in April 2014. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resort to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information or evidence, the limits of medical knowledge, etc. N.S. PETTINE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.