Citation Nr: 21006694 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-26 466 DATE: February 4, 2021 REMANDED 1. Entitlement to service connection for a right shoulder disorder, characterized as tendinosis of the rotator cuff and degenerative change of the acromioclavicular joint, is remanded. 2. Entitlement to service connection for sleep apnea, to include as secondary to obesity, asthma, hypertension, and/or post-traumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2005 to September 2005, from March 2006 to February 2007, from August 2008 to February 2009, and from February 2009 to September 2009. He also has service in the Army Reserves. This matter returns to the Board of Veterans’ Appeals (Board) following the issuance of a Joint-Motion for Partial Remand in September 2019. The Veteran’s claim was remanded by the Board in January 2020 wherein the Regional Office (RO) was directed to complete additional development. 1. Entitlement to service connection for a right shoulder disorder, characterized as tendinosis of the rotator cuff and degenerative change of the acromioclavicular joint, is remanded. 2. Entitlement to service connection for sleep apnea, to include as secondary to obesity, asthma, hypertension, and/or post-traumatic stress disorder (PTSD), is remanded. The Veteran has submitted a claim for service connection for a right shoulder disorder. Of note, is a right shoulder injury and subsequent surgery the Veteran underwent in March 2000. The Veteran was placed on a temporary limited physical profile from July to October 2000 due to the surgery, he was again placed on a limited physical profile in January 2001. The Veteran’s first period of active duty began in February 2005. The previous Board remand decision directed for a new VA examination for the Veteran’s right shoulder as the October 2017 examination was determined to be inadequate. The remand directed the examiner to opine on whether the Veteran had a pre-existing right shoulder injury noting the Veteran’s March 2000 rotator cuff tear and surgery. The examiner was also tasked with discussing whether the Veteran’s periods of active duty service more likely than not aggravated the Veteran’s potential pre-existing injury beyond its natural progression. An examination was conducted in March 2020, the examiner provided a rationale finding that the Veteran’s right shoulder disorder was not directly caused by his active duty service, or cause and/or aggravated by his service-connected left shoulder disability. The examiner also addressed the theory that the Veteran had a pre-existing injury that was potentially aggravated in service and indicated that a pre-existing injury could not be endorsed because the Veteran’s June 1983 examination was silent for such a disorder. The examiner did not opine further on this theory of entitlement. The Board finds that the examiner’s rationale regarding aggravation is not sufficient for the purposes of adjudication as they did not address the noted March 2000 injury and surgery. Furthermore, the examiner did not address the Veteran’s actual periods of service in regard to his right shoulder injury. There has not been substantial compliance with the previous Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, a remand is necessary so that the RO can obtain an addendum opinion to speak to the parts of the March 2020 examination that are insufficient for the purposes of adjudication. Turning to the Veteran’s claim for sleep apnea, to include as secondary to obesity, asthma, hypertension, and/or post-traumatic stress disorder (PTSD), the Board observes that the Veteran submitted a statement in June 2016 wherein he indicated that his last active duty period lasted from June to August 2011 at Command and General Staff College, and he first sought medical care for sleep related problems in November 2011 with Dr. L. at the OEF/OIF clinic. To date, documents to substantiate both events have not been obtained and/or sought by the RO. It is not clear to the Board what was discussed by the Veteran and Dr. L. at his November 2011 medical appointment, or if his doctor suspected sleep apnea or another disorder. Additionally, it is important to verify the Veteran’s periods of active duty so that a proper timeline can be established for the claim at hand. As such, a remand is necessary so that the RO can seek the missing documentation. The matters are REMANDED for the following action: 1. The RO should invite the Veteran to submit any additional evidence in support of his claim. 2. The RO should obtain all the Veteran’s medical records from the OEF/OIF clinic and make any and all efforts to do so. In particular, the RO should seek the records for the November 2011 medical appointment with Dr. L. Additionally, the RO should seek records pertaining to the Veteran’s reported period of active duty from June to August 2011 at the Command and General Staff College, and add them to the record. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 3. The RO should obtain an addendum opinion from an appropriate clinician to determine if the Veteran had a clear and unmistakable pre-existing injury of the right shoulder prior to his periods of active duty. The Board once again points to the Veteran’s March 2000 shoulder injury and surgery. In other words, has the Veteran’s previous right shoulder injury resolved prior to active service? If the examiner finds it did clearly and unmistakably pre-exist service, the examiner should opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner should opine whether the Veteran right shoulder disorder is at least as likely as not (at least a 50 percent or greater probability) related to an in-service injury, event, or disease in active service. All opinions should be accompanied by adequate reasons and bases. If the examiner cannot provide the requested opinion without resorting to mere speculation, they should provide a complete explanation stating why this is so.   In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that they have exhausted the limits of current medical knowledge in providing an answer to that particular question. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Associate Counsel