Citation Nr: 21009868 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 13-03 564 DATE: February 23, 2021 REMANDED Entitlement to service connection for arthritis or residuals of fractured shoulder is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for residuals of a concussion or fracture of the skull causing mental instability with memory loss or bipolar disorder and resulting in an aneurysm is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric condition is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1973 to March 1979. In February 2017, he testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The claim was most recently before the Board in November 2018 when it was remanded for further development. There has not been substantial compliance with the remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for arthritis or residuals of fractured shoulder is remanded. The Veteran contends that he suffers from a bilateral shoulder disability that resulted from a July 1974 in-service altercation and subsequent hospitalization. In December 2019, he underwent a VA examination where he was diagnosed with bilateral shoulder arthritis. The examiner opined that the Veteran’s diagnosed bilateral shoulder disabilities were most likely the result of a “post-military accident as noted above.” However, the examiner’s only previous reference is to a 1978 motor vehicle accident, which would have occurred during the Veteran’s active duty period of service. Remand is needed to obtain a clarifying addendum opinion on the etiology of his diagnosed bilateral shoulder disabilities. 2. Entitlement to service connection for hearing loss is remanded. In December 2019, the Veteran underwent a VA examination for his hearing loss pursuant to the November 2018 Board remand. The VA examiner’s opinion is inadequate because the examiner started with the premise that the Veteran had a hearing loss that existed before service, but used the wrong standard in assessing whether there was aggravation. The October 1973 entrance examination report includes audiometric findings, but there was no specific defect or diagnosis noted on the examination. Thus, the Veteran is presumed sound. The opinion on remand must address whether or not (1) a hearing loss disability clearly and unmistakably existed prior to service; and (2) if so, whether the pre-existing hearing loss was not aggravated beyond the natural progress of the disability during service or that any increase in disability during service was due to the natural progression of the disease. See Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004). Remand is therefore needed to obtain a new VA opinion. 3. Entitlement to service connection for hepatitis C is remanded. The Veteran contends that he contracted hepatitis C from air gun injections he received during active duty service. He also stated that he shared razors during service with other service members, which is another risk factor for the contraction of hepatitis C. In December 2019, he underwent a VA examination on this issue. However, the examiner provided a conclusory negative opinion stating there was “insufficient current medical scientific evidence to support” the Veteran’s contention that he contracted the disease through air gun injections. Remand is needed for a new opinion, preferably from a VA hepatologist or infectious disease specialist, which more thoroughly addresses the Veteran’s contentions. 3. Entitlement to service connection for residuals of a concussion or fracture of the skull causing mental instability with memory loss or bipolar disorder and resulting in an aneurysm is remanded. 4. Entitlement to service connection for an acquired psychiatric condition is remanded. 5. Entitlement to service connection for headaches is remanded. The Veteran contends that he suffers from residuals of a traumatic brain injury (TBI) as a result of his July 1974 in-service altercation and subsequent hospitalization. The Veteran stated that he suffered a concussion from his injuries. See February 2009 Statement in Support of Claim. In December 2019, he underwent a VA examination in which an examiner concluded the Veteran did not have either a TBI or any residuals. The examiner did state that the Veteran had a diagnosed mild cognitive impairment with risk of developing vascular dementia. However, the examiner failed to state whether this cognitive impairment was related to the Veteran’s claimed disability. Remand is needed for a clarifying opinion. As the Veteran’s claimed headache and psychiatric conditions are intertwined with the service connection claim for residuals of a concussion or fracture of the skull, they will be remanded as well. Finally, remand is needed for a VA opinion addressing whether the Veteran’s headaches are related to his active duty service. The matters are REMANDED for the following action: 1. Forward copies of all pertinent records to a VA clinician – preferably an orthopedic surgeon – to obtain an addendum opinion regarding the likely etiology of the Veteran’s bilateral shoulder arthritis. If the examiner determines that an opinion cannot be provided without an examination, then one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Following review of the record, the clinician should answer the following question: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s bilateral shoulder arthritis had its onset during service or is otherwise related to active duty service? The Veteran’s lay statements attest to experiencing shoulder problems since a July 1974 in-service altercation and hospitalization. A complete rationale must be provided for all opinions. 2. Forward the claims file to a VA clinician to obtain an addendum opinion regarding the etiology of the Veteran’s bilateral hearing loss. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. The examiner is asked to provide opinions to the following questions: (a) Is there clear and unmistakable evidence (obvious and manifest) that the Veteran’s hearing loss disability pre-existed his service? (b) If the answer to (a) is yes, is there clear and unmistakable evidence that the Veteran’s pre-existing hearing loss was not aggravated beyond the natural progress of the disability during service or that any increase in disability during service was due to the natural progression of the disease? Please identify any clear and unmistakable evidence with specificity. The examiner should specifically consider and discuss as necessary the findings on the October 1973 entrance examination report. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the Veteran’s current hearing loss disability was caused or aggravated by active service, to include as a result of the Veteran’s exposure to acoustic trauma in service. A complete rationale should be provided for all opinions and conclusions expressed. 3. Obtain an addendum opinion from an appropriate clinician – preferably a VA hepatologist or infectious disease specialist – regarding whether the Veteran’s hepatitis C is at least as likely as not related to risk factors for contraction of the disease during active duty service. The examiner is asked to specifically consider and comment on the significance of the Veteran’s reports of being injected with an air gun during service, as well as sharing razors with other service members. A complete rationale should be provided for all opinions and conclusions expressed. 4. Forward the claims file to an appropriate VA clinician to obtain an addendum opinion regarding the Veteran’s claimed residuals of a concussion or fracture of the skull. If the examiner determines that an opinion cannot be provided without an examination, then one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Following review of the record, the clinician should answer the following questions: (a.) Identify all diagnoses related to the Veteran’s claimed residuals of a concussion or fracture of the skull. (b.) Is it at least as likely as not that any diagnoses identified in (a) either had their onset or are otherwise related to the Veteran’s active duty service? (c.) Is it at least as likely as not that the Veteran’s diagnosed mild cognitive impairment either had its onset in or is otherwise related to active duty service? (d.) Is it at least as likely as not that the Veteran’s headaches either had their onset in or are otherwise related to active duty service? A complete rationale must be provided for all opinions. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.