Citation Nr: 21008154 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-06 655 DATE: February 11, 2021 REMANDED Entitlement to service connection for a left shoulder disorder is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from March 1978 to March 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified during a video-conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Procedural History In September 2018, the Board granted service connection for a left knee disability and remanded the Veteran’s claims for entitlement to service connection for disorders of the left shoulder, lumbar spine, coccyx, right hip, and left hip for further development. In December 2019, the RO granted service connection for the lumbar spine, coccyx, right hip, and left hip disorders, and, being full grants of the benefits sought those service connection claims are no longer before the Board for appellate consideration. AB v. Brown, 6 Vet. App. 35 (1993). Although the record reflects that the Veteran has appealed the assigned ratings for those service-connected disabilities, that appeal remains pending under the new Appeals Modernization Act (AMA) framework separate and apart from the instant appeal. In a December 2019 Supplemental Statement of the Case, the RO continued its denial of service connection for a left shoulder disorder and returned the claim to the Board. Left Shoulder Although the Board regrets the additional delay, remand is again necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38C.F.R. § 3.159(c) (2019). Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, a Board remand confers on the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, in opining that it is less likely than not that the Veteran’s left shoulder disorder is related to service, the October 2019 VA examiner emphasized the absence of evidence of an injury during service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that examination was inadequate where the examiner did not comment on the appellant’s report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). Additionally, the opinion fails to consider post-service treatment records and the Veteran’s lay statements variously attributing his left shoulder disorder to heavy lifting and a fall on or from a bulldozer during service. See VA Shoulder and Arm Conditions examination report dated October 10, 2019 at pg. 3 (Section 2A); Correspondence dated March 15, 2018 from private physician F. Graf, M.D. This is suggestive that the VA examiner’s review of the claims file was cursory at best, which renders the opinion of little or no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). While the undersigned recognizes that the Board previously found Dr. Graf’s March 2018 opinion inadequate, the Board did not then, and does not at this juncture, adjudge the veracity of the Veteran’s lay statements noted therein. Thus, these lay statements should have been considered by the examiner. For these reasons, the Board finds inadequate the October 2019 VA medical opinion regarding the etiology of the Veteran’s left shoulder disorder. Accordingly, remand is warranted to obtain an addendum opinion addressing the etiology of the Veteran’s left shoulder disorder that is compliant with the Board’s remand directives detailed below and adequate for purposes of adjudication of the service connection claims. See Stegall supra; Barr supra. Competence of Examiner The Veteran’s representative has challenged to the adequacy of the October 2019 VA shoulder examination and questioned the qualifications of the VA examiner who conducted it and provided the associated October 2019 etiology opinion. See Correspondence from representative A. Jackson dated November 3, 2020. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently issued a panel decision in Francway v. Wilkie, affirming the decision of the United States Court of Appeals for Veterans Claims (Court) which found that when a challenge to the competency of the medical examiner is raised, the Board must make a factual finding as to whether the medical examiner is competent. Francway v. Wilkie, 940 F.3d 1304, 1307-08 (Fed. Cir. 2019). The Court held that the challenge must be more than a general assertion that an examination or opinion is inadequate and must be raised by the Veteran in the first instance. Id. A challenge raised under the above circumstances rebuts the presumption of competency and VA must satisfy its burden of persuasion as to the examiner’s qualifications by providing the Veteran with information about the qualifications of the examiner. Furthermore, the Federal Circuit has observed that the question of whether an examiner is competent and whether he or she has rendered an adequate examination are two separate inquiries. Francway, 940 F.3d at 1309. Here, the Veteran’s representative stated: “While I object to the examination report generally, [VA] attorneys have recently been arguing that I must raise any specific objections to the qualifications of the examiner specifically at the hearing. I currently lack sufficient information to make a detailed objection in that regard.” See Correspondence from representative A. Jackson dated November 3, 2020. To the extent that the representative questions the adequacy of the October 2019 VA examination, the representative has not pointed out any specific problems with the examination regarding the issue on appeal. Without specific assertions of how the examination is inadequate, the Board is unable to assess whether there is any merit to the representative’s assertion. The Board finds that the representative’s November 2020 correspondence fails to raise the question of the October 2019 VA examiner’s’ competency with sufficient clarity. Hence, the presumption of competency regarding the October 2019 VA examiner has not been rebutted. See Francway, 940 F.3d at 1308 Nevertheless, VA must respond to the Veteran’s request for the October 2019 VA examiner’s credentials. “Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA’s duty to assist.” Francway, 940 F.3d at 1308 (citing 38 U.S.C. § 5103A; Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013)). Accordingly, on remand VA must respond to the representative’s November 2020 request for the credentials of the October 2019 VA examiner, to the extent possible and as allowed by law. See Francway, 940 F.3d at 1308. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. To the extent possible, provide the credentials of the October 2019 VA examiner, as allowed by law, to the Veteran and his representative, and associate copies of the materials provided with the electronic claims file. Allow a reasonable amount of time for the Veteran or his representative to respond. Associate any response and related materials with the electronic claims file. 3. Then, obtain an addendum opinion from the same VA examiner who conducted the October 2019 VA shoulder and arm examination, and authored the associated medical opinion, if available, as to the nature and etiology of the Veteran’s left shoulder disorder. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinions. If an examination(s) is performed, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a careful review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) For each currently diagnosed left shoulder disorder, provide an opinion as to whether it at least as likely as not (50 percent or greater probability) had its onset during active duty service, manifested within one year after service separation, or is otherwise casually or etiologically related to it. Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant evidence, which is identified by VBMS labels and receipt dates in parenthesis. (i) Correspondence from F. Graf, M.D. dated March 15, 2018 noting that the Veteran indicated that he injured his left shoulder in a fall from a bulldozer during service (see VBMS entry with document type “Medical Treatment Record – Non-Government Facility,” receipt date 03/29/2018, at PDF page 2); (ii) The Veteran’s statement recorded in the October 10, 2019 VA Shoulder and Arm Conditions examination report that he injured his left shoulder due to heavy lifting during service (see VBMS entry with document type “C&P Exam,” receipt date 12/02/2019, at PDF page 3 of 17 (Section 2A)); and (iii) The Veteran’s statement during the December 7, 2020 Board hearing that he injured his left shoulder in a fall on the track to a bulldozer during service (see VBMS entry with document type “Correspondence,” receipt date 12/07/202, at PDF page 3). *The Board’s reference to evidence in this context should not be construed as a determination of its credibility. A complete rationale should be provided for all opinions. 4. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Farrell, Bradley 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.