Citation Nr: 21006369 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-50 580 DATE: February 4, 2021 REMANDED 1. Entitlement to service connection for fatigue, claimed as due to exposure to contaminated water at Camp Lejeune, is remanded. 2. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional left shoulder disability due to VA examination on April 16, 2015, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Marine Corps from May 1968 to April 1970. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from February 2016 and May 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The claims were remanded by the Board to the Agency of Original Jurisdiction (AOJ) for further development in September 2019. This appeal was last before the Board in January 2018 when it was remanded for further evidentiary and procedural development. For reasons outlined below, the Board finds that the remand directives were not complied with and an additional opinion is required. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for fatigue, claimed as due to exposure to contaminated water at Camp Lejeune, is remanded. While further delay is regrettable, the Board concludes that the Veteran’s appeal must be remanded so that VA can fulfill its duty to assist the Veteran in substantiating his appeal and ensuring the receipt of an adequate VA opinion. The Board finds that the Veteran’s previous VA opinion from September 2020 is inadequate. The August 2020 remand directives required, most pertinently, a medical opinion to identify whether the Veteran has any current fatigue disorder, and if so, state whether it is at least as likely as not such a current fatigue disorder is due to or aggravated by (increase in severity beyond the natural progress of the disorder) a service-connected disability, to include the service-connected bipolar disorder including depression and anxiety symptoms with cannibis use disorder. The September 2020 examiner concluded that there is no evidence to support a diagnosis of chronic fatigue syndrome (CFS); therefore, the claimed condition is less likely than not proximately due to or the result of the Veteran’s service-connected conditions. The Board acknowledges the examiner’s opinion that the Veteran’s medical history does not support a diagnosis of CFS; however, he failed to address whether the Veteran could potentially have any other fatigue disorder, or disability characterized by fatigue. In light of this, the September 2020 opinion is not fully responsive to the August 2020 remand directives, and thus a new opinion is warranted. 2. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional left shoulder disability due to VA examination on April 16, 2015, is remanded. The Board finds the September 2020 VA opinion to be inadequate. The August 2020 remand directives required an opinion on whether it is at least as likely as not (50 percent or greater probability) that VA hospital care, medical or surgical treatment or examination, to specifically include the April 2015 VA examination, resulted in additional disability of the Veteran’s left shoulder. It further required the examiner to address whether it is at least as likely as not (50 percent or greater probability) that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part or owing to an event that was not reasonably foreseeable during the course of the Veteran’s April 2015 VA examination, and whether it is at least as likely as not (50 percent or greater probability) that VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider by examining the Veteran’s left shoulder, in the context of his past medical history. In responding to these questions, the examiner was asked to consider and address (1) the Veteran’s April 2015 VA shoulder examination; (2) the Veteran’s contention that his left shoulder symptomatology worsened since that time; and (3) VA treatment records including in June 2015 and December 2015 noting the Veteran’s complaints and findings regarding his left shoulder. Pursuant to the August 2020 remand, VA obtained a medical opinion in September 2020. After a detailed recitation of the medical and lay evidence of record, including treatment records and previous medical opinions, the examiner found that the record is silent for a left shoulder disability, and opined that it is not likely that the claimed disability of left shoulder condition was caused by or became worse as a result of the VA treatment at issue or the additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel or the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The examiner’s rationale for this opinion was a verbatim recitation of the February 2016 VA opinion concerning compensation under 38 U.S.C. § 1151. The Board notes that the mere recitation of a prior opinion does not constitute competent medical evidence of causality. Further, the Board finds the opinion to be based on an inaccurate factual basis. The examiner stated the record was silent for a left shoulder disability; however, the March 2016 Disability Benefits Questionnaire (DBQ) notes a diagnosis of bilateral osteoarthritis. As such an addendum opinion is warranted. The matters are REMANDED for the following action: 1. Obtain the following opinions from a VA examiner. If possible, attempt to obtain an opinion from an examiner other than the one who conducted the August 2020 examination of the Veteran. The Veteran need not be scheduled for in-person examination unless such examination is considered necessary by the reviewing medical care provider. The claims file must be made available to the examiner for review, and the examiner must acknowledge such review in the examination report. After reviewing the claims file in its entirety and examining the Veteran, if deemed necessary, the examiner is asked to do the following: a. Identify whether the Veteran has any current fatigue disorder, or disability characterized by fatigue, and if so, state whether it is at least as likely as not such a current fatigue disorder is due to or aggravated by (increase in severity beyond the natural progress of the disorder) a service-connected disability, to include the service-connected bipolar disorder including depression and anxiety symptoms with cannibis use disorder. The examiner is asked to consider the March 2020 VA examination report as well as the Veteran’s lay statements regarding the nature and onset of his disability. A complete rationale must be provided for any medical opinion stated. b. Opine on whether it is at least as likely as not (50 percent or greater probability) that VA hospital care, medical or surgical treatment or examination, to specifically include the April 2015 VA examination, resulted in additional disability of the Veteran’s left shoulder. c. Whether it is at least as likely as not (50 percent or greater probability) that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part or owing to an event that was not reasonably foreseeable during the course of the Veteran’s April 2015 VA examination. d. Whether it is at least as likely as not (50 percent or greater probability) that VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider by examining the Veteran’s left shoulder, in the context of his past medical history. In responding to these questions, please specifically discuss: (1) the Veteran’s April 2015 VA shoulder examination; (2) the Veteran’s contention that his left shoulder symptomatology worsened since that time; and (3) VA treatment records including in June 2015 and December 2015 noting the Veteran’s complaints and findings regarding his left shoulder. (Continued on the next page)   A complete rationale should be provided for any opinion expressed. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.