Citation Nr: 21007861 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 10-20 728 DATE: February 10, 2021 REMANDED The claim for service connection for a neck disability is remanded. The claim for service connection for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from December 1979 to December 1983. This matter is on appeal before the Board of Veterans’ Appeals (Board) from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2011, the Veteran and his mother testified at a Board hearing before Veterans Law Judge Dennis Chiappetta. The transcript is of record. In March 2016, the Board advised the Veteran that the Veterans Law Judge who conducted his hearing is unavailable to participate in the decision on appeal, and that he could request a hearing before another Veterans Law Judge. In a letter dated in June 2016, the Veteran’s prior representative indicated that the Veteran did not desire another hearing on the matter. In November 2012, the Board remanded these matters for further development, to include obtaining outstanding treatment records and VA examinations. In May 2015, the Board denied the claims and the Veteran thereafter appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2016, the parties filed a Joint Motion for Partial Remand (JMPR). On February 17, 2016, the Court granted the JMPR and vacated the November 2012 Board decision in part and remanded these matters for compliance with the JMPR. In July 2016, the Board remanded the Veteran’s claim for further development to include obtaining outstanding VA treatment records and addendum medical opinions consistent with the Court’s February 2016 JMPR. In September 2017, the Board denied the claims and the Veteran thereafter appealed to the Court. In November 2018, the parties filed another JMPR. On November 27, 2018, the Court granted the JMPR and vacated the September 2017 Board decision as to the issues noted above and remanded the claims for compliance with the November 2018 JMPR. In the November 2018 JMPR, the parties agreed that the Board erred by failing to ensure that VA complied with the terms of the July 2016 Board remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Court stated that in July 2016, the Board remanded the issues of service connection for neck, right shoulder, and left shoulder disabilities, with instructions that VA afford the Veteran an examination and that the examiner opine as to whether any current disability was caused or aggravated as a result of the Veteran’s service-connected lumbosacral spine disability. The JMPR stated that the July 2016 Board remand directed the examiner to “provide an explanation or analysis for any opinion offered.” The JMPR found that while an August 2016 VA examination report stated, “L-S condition does not cause or aggravate a neck or bilateral shoulders [disability],” this does not provide the reasoning required by the July 2016 Board remand order. Moreover, the Court found that the November 2016 VA opinion addendum of record does not discuss whether the Veteran’s neck, right shoulder, and left shoulder disabilities were caused or aggravated by his service-connected lumbosacral spine disability. Thus, the JMPR determined that a remand was necessary for VA to obtain medical opinions that squarely addresses whether the Veteran’s claimed neck, right shoulder, and left shoulder disabilities were caused or aggravated by his service-connected lumbosacral spine disability, and adequate rationale supporting the findings was required. Subsequently, this claim was before the Board in September 2019, at which time it was remanded for further development, to include outstanding treatment records and neck/bilateral shoulders VA examinations, to include secondary service connection opinions with adequate rationale for their findings. The matter has returned to the Board for appellate review. As discussed in detail below, VA’s medical opinion regarding aggravation have not complied with the September 2019 remand order and November 2018 JMPR Order and another remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Initially, since the prior September 2019 Board remand, a July 2020 rating decision granted service connection for the Veteran’s left shoulder condition. As this represents a full grant of the benefit sought, the service-connection issue is no longer before the Board in a legacy lane. However, in November 2020, the Veteran’s previous representative submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR) under the Appeals Modernization Act (AMA), stating that he requests review of an August 7, 2020 rating decision denying an increased rating claim for his service-connected left shoulder. Upon review of the record, the record reflects an August 7, 2020 rating decision notification granting the Veteran service connection for his left shoulder disability, no rating decision denying an increase rating is of record and the AOJ has not issued an HLR decision as of date. As such, this issue and/or HLR decision is not on appeal before the Board at this time under the Appeals Modernization Act (AMA) HLR lane. In the case before the Board, the September 2019 remand directives included a VA examination and medical opinions to determine whether the Veteran’s neck, and/or right shoulder disabilities were caused or aggravated by his service-connected lumbosacral spine disability. The Board finds that additional VA medical opinions are required to clarify the November 2019 VA medical opinion regarding aggravation. For example, when the examiner was asked to opine whether the Veteran’s neck and right shoulder disability was chronically aggravated by his service connected disability, to include his service-connected lumbosacral spine disability, the examner repeated the “proximately due” opinions and did not address the “chronically aggravation” question specifically. See question eight, twelve and fourteen in the November 2019 VA medical opinion. Thus, the examiner did not properly address or provide the requested aggravation opinions regarding the Veteran’s service-connected disabilities and his claimed neck, and right shoulder conditions as directed in the November 2018 JMPR. Furthermore, while the examiner opined that the Veteran’s neck and right shoulder conditions were not aggravated beyond natural progression by the lumbosacral spine condition during service, the examiner determined that the neck and shoulder conditions clearly and unmistakably existed prior to service. This opinion appears to be based on a misunderstanding of the term “aggravated” as it is defined in VA regulations, as no evidence was cited to show that either condition existed prior to service. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the nature and etiology of his neck, and right shoulder disabilities. After review of the claims file, including the November 2018 JMPR and November 2019 Disability Benefits Questionnaire and medical opinions, including the examiner’s opinion for aggravation of a condition that existed prior to service that includes the finding that the Veteran’s neck and right shoulder conditions clearly and unmistakably existed prior to service. The examiner should then respond to the following questions: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s neck disability was caused by any or all of his service-connected disabilities, to include lumbosacral spine disability? Why or why not? (b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s neck disability was aggravated (made worse) by his service-connected disabilities, to include lumbosacral spine disability? Why or why not? In providing this answer, the examiner should note that “aggravated” means that the service connected disability made the neck disability worse, it does not imply that the neck disability existed prior to service. (c) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s right shoulder disability was caused by any or all of his service-connected disabilities, to include lumbosacral spine disability? Why or why not? (d) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s right shoulder disability was aggravated (made worse) by his service-connected disabilities, to include lumbosacral spine disability? Why or why not? In providing this answer, the examiner should note that “aggravated” means that the service connected disability made the right shoulder disability worse, it does not imply that the neck disability existed prior to service. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Franklin, Associate Counselor 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.