Citation Nr: 21005770 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-58 912 DATE: February 2, 2021 REMANDED Entitlement to service connection for a left shoulder disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from October 1976 to October 1977. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2013 rating decision. In September 2017 a videoconference hearing was held before the undersigned; a transcript is in the record. In November 2018 the matter was remanded for additional development. Entitlement to service connection for a left shoulder disability. The Veteran’s service treatment records (STRs), received for the record in 2014, show that on March 24, 1977 he was seen for lingering left shoulder pain complaints. The examining corpsman noted that he reported falling on the left arm while wrestling 2 weeks prior and had had some pain since, and that there was full range of motion with some increased tenderness over the acromioclavicular (AC) joint. He was sent for X-rays of the AC joint, which were negative. No further left shoulder complaints in service are noted. On service separation examination the upper extremities were normal on clinical evaluation. The STRs also show that on April 20, 1977 the Veteran was seen for right shoulder complaints complaints following an injury sustained playing basketball (he ran into a post striking that shoulder). Continuing right shoulder complaints were noted in May and August 1977 (when he was placed on profile for the right shoulder). A September 1977 VA hospitalization summary [for an unrelated condition] notes that during the hospitalization the Veteran reported right shoulder pain, and an injury to that shoulder in service (which was X-rayed, and no abnormality was found). There was no notation of left shoulder complaints. On June 2013 VA examination (in connection with this claim), the examiner (a nurse practitioner) opined that the “claimed condition was at least as not…caused the claimed in service injury ….”; the only listed diagnosis was osteoarthritis. The rationale provided was: “STRs showed that the Vet. injured his left shoulder while wrestling in March 1977 during his military service. He continues with pain until present.” The summary of the history of the disability notes the single clinical visit in service when X-ray was negative, and that there was no follow-up; the examiner did not acknowledge the normal upper extremity clinical evaluation on service separation examination, that after the March 1977 clinic visit the Veteran was seen on multiple occasions for complaints related to a subsequent right shoulder injury sustained playing basketball (when no left should complaints were noted), and that when he was seen after service hospitalized at a VA facility he reported right shoulder complaints and the right shoulder injury in service, but did not mention left shoulder complaints or injury. It was noted that he stated he had left shoulder complaints after service, but did not seek medical attention until he re-injured the shoulder in the mid 1980, playing basketball. It was further noted that he reported no X-rays were taken at the time and that he was only treated with a sling, and that since then he has had a progressive, until the present pain in the shoulder. The provider went on to explain, “ I cannot give an educated opinion as to whether his current condition is mainly due to his first injury the service [sic] and that was aggravated by the second injury after the service, or that the condition is mainly due to the second injury. Therefore I cannot give an opinion without resorting to mere speculation.” The findings reported on physical examination noted that a December 2011 left shoulder MRI was positive for a partial tear of the supraspinatus (above the spine, therefore in, or near, shoulder area), and that various tests suggestive of additional shoulder pathology were positive. As there were various inconsistencies in the examination report and the opinion given, the Board remanded the matter for a clarifying opinion. In that regard, it is noteworthy that the 2013 examiner’s rationale relied essentially on continuity of left shoulder symptoms after the injury in service; as such continuity is not shown in the record, the provider apparently relied on the credibility of the Veteran’s lay accounts on examination. However, those accounts appear to be contradicted by contemporaneous clinical data (not discussed by the examiner), including that STRs do not show follow-up treatment after the negative X-ray in service, clinical notations that the Veteran was playing basketball with a month after he was seen for the left shoulder and sustained a right shoulder injury, which required extended treatment (including profile)/multiple visits, and that there was no mention of left shoulder complaints on those occasions, that evaluation of the upper extremities on service separation was negative, and that when he was hospitalized in September 1977 (during service) at a VA facility he reported right shoulder complaints and injury, but did not mention the left shoulder. These records, particularly considered cumulatively, all suggest that the left shoulder injury during service was acute, resolved without residual pathology, or continuing complaints. The 2013 examiner’s failure to mention these clinical recordings suggests the opinion was based on a lack of familiarity with the complete pertinent evidentiary record. The examiner also did not comment on the significance of the clinical notations that do show evaluation, but do not show actual treatment for the left shoulder during service, and his report that the mid-1980 injury required use of a sling (suggesting that injury may have been of more severe gravity. Furthermore, the June 2013 examiner initially offered a nexus opinion (to injury in service) supportive of the claim, but then went on to indicate that offering an opinion regarding to what extent the current “condition” is related to injury in service vs. to injury postservice would require resort to mere speculation (which appear to contradict the opinion stated in “at least as likely as not” terms. An opinion based on mere speculation lacks probative value, service, and the apparent contradiction requires clarification. Finally, the only diagnosis listed on the 2013 examiner’s report was osteoarthritis. In the rationale provided the description of the current disability refers to condition (without further indicating what condition is addressed). As the noted 2011 MRI and the positive findings on various testing then suggest the Veteran may have had additional shoulder pathology (perhaps suggestive of intercurrent injuries, the opinion was incomplete. Therefore, the 2013 VA examination and opinion are inadequate for rating purposes. The Board remand sought an addendum medical opinion in this matter. The orthopedic examiner was to identify each left shoulder disability shown by diagnosis; identify the likely etiology for each diagnosed entity, and if a current diagnosed disability was found to have been incurred in service, but had pathology from a postservice injury superimposed, to so indicate and to distinguish to the extent possible, pathology from the injury in service from injury and pathology superimposed postservice. The provider of the November 2019 opinion (a physician in family practice did not respond to the specific requests. Instead the provider offered the conclusory opinion “The claimed [diagnosis(es) unidentified] condition was less likely than not incurred in or caused the claimed inservice injury” . The only rationale provided was: “after reviewing medical records, remand letter, and performing physical examination, it is less likely than not that the veteran’s left shoulder strain in service is service connected as there are no medical records showing diagnosis, treatment for the left shoulder condition while veteran was in service.” The only left shoulder diagnosis noted on physical examination was “strain” ; the provider did not address what became of the osteoarthritis (and additional suggested pathology) earlier noted. The report and opinion are clearly non-responsive to the remand directives. Development for an addendum opinion (by an appropriate clinician) that complies with the Board’s directives is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: Arrange for the Veteran’s claims file, specifically including this remand, to be forwarded to an appropriate (one with some experience in diagnosis and treatment of orthopedic conditions) for review and an addendum advisory opinion that responds to the following (noting the detailed explanation provided herein, above: (a) Identify each current left shoulder disability by diagnosis(es). Specifically address (i) the diagnosis of osteoarthritis (ii) the December 2011 MRI findings noted on that examination (what diagnosis they reflect), and the positive findings on various testing on June 2013 VA examination (what diagnosis/es, if any, they reflect; and (iii) the diagnosis of strain by the November 2019 consulting provider. If the consulting provider disagrees with any such diagnosis, explaining the reasoning for the disagreement. (b) Identify the likely etiology for each current left shoulder disability diagnosed. Specifically, is it at least as likely as not that the disability diagnosed. Specifically, is it at least as likely as not (a 50 percent or better probability) that the diagnosed left shoulder disability was incurred in service due to the noted injury therein? (c) If a diagnosed left shoulder disability is determined to be unrelated in service, identify the etiology for the disability that is considered to be more likely and explain why that is so. (d) If a currently diagnosed left shoulder disability is considered to in part (only) be related to the injury in service, but there is pathology that was superimposed by postservice injury, to the extent possible distinguish the pathology and impairment due to the injury in service from that superimposed postservice. All opinions must include a complete explanation of rationale that cites to supporting factual data and medical principles. The rationale must reflect consideration of the Veteran’s reports of continuity of complaints postservice. If the consulting provider finds that an opinion sought cannot be given without resort to mere speculation, (to satisfy legal requirements) the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given the state of medical science and the known facts) or by a deficiency in the record or the examiner (additional facts are required, or the examiner does not have the requisite knowledge or training). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.