Citation Nr: 21010282 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-27 634 DATE: February 24, 2021 REMANDED Entitlement to service connection for left shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1987 to July 1991. In September 2019, the Veteran testified via video conference before the undersigned. In December 2019 and June 2020, the issue was remanded by the Board for further development. 1. Entitlement to service connection for a left shoulder disability is remanded. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends that he has a current left shoulder disability that had its onset in service. Specifically, the Veteran testified at his September 2019 Board hearing that he injured his shoulder while lifting equipment during cold weather training. The Veteran also testified that he could not seek treatment after service until he received health insurance through an employer but that he sought treatment in 2000 and continuously since then. In December 2019, the Board remanded the issue for a new VA examination that considered the Veteran’s lay statements noted above, as well as a September 2015 private opinion by Dr. RC that was not considered by the VA examiner. The Veteran had undergone a VA examination in March 2016, but the Board found the examination inadequate because the examiner did not provide a complete rationale to support the conclusion. Instead, the VA examiner relied on the absence of contemporaneous post service medical treatment records and did not consider the Veteran’s statement that he was unable to get treatment until he secured employment and was able to afford health insurance. Furthermore, the examiner’s opinion did not address a private opinion by Dr. RC added to the Veteran’s claims file after the March 2016 VA examination. In response to the remand, a February 2020 VA examiner opined that it was less likely than not (less than a 50 percent probability) that any current left shoulder condition was incurred in service. The rationale provided was that there is no mention in the STRs of a left shoulder complaint. Similarly, in the June 2020 remand, the Board found this February 2020 VA opinion inadequate as it still does not address the Veteran’s lay statements or the September 2015 private opinion by Dr. RC. In response to the June 2020 remand, a June 2020 VA examiner opined that it was less likely than not that any current left shoulder condition was incurred in service. The rationale indicated that although Dr Collins states that the documented in-service injuries in left shoulder “mark the onset” of the problem, the examiner was unable to find any recorded documentation of left shoulder injury or any chronic left shoulder problem. Unfortunately, for similar reasons, the Board finds that the June 2020 VA opinion is also inadequate as it still does not address the Veteran’s lay statements that he had pain in his left shoulder in and since service, but was unable to seek treatment for his left shoulder after service until he secured employment with health care benefits. Thus, in not addressing the Veteran's lay statements as directed, the opinion proffered by the VA examiner is not fully responsive to the prior remand directive. See Stegall, supra. Moreover, where VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, on remand, an addendum opinion should be provided in accordance with the December 2019 and June 2020 remand instructions to determine whether the Veteran’s left shoulder condition is etiologically related to service. By this remand, the Board makes no determination, expressed or implied, as to the credibility of any lay statements in this appeal. The matter is REMANDED for the following action: Return the claims file to the VA examiner who conducted the February 2020 VA examination. If the February 2020 VA examiner is not available, the electronic claims file should be provided to an appropriate medical professional so as to render the requested opinion. The examiner is asked to provide an opinion as to whether it is at least as likely as not the claimed left shoulder condition is etiologically related to service When providing the opinion, the examiner must consider and discuss all relevant medical and other objective evidence (particularly the September 2015 private medical opinion by Dr. RC), as well as all evidence of lay assertions as to the nature, onset and continuity of symptoms alleged to be indicative of a left shoulder disability. Such lay evidence must specifically include the Veteran’s September 2019 Board hearing testimony that he injured his shoulder while lifting equipment during cold weather training, that he could not seek treatment after service until he received health insurance through an employer, and that he has continuously received treatment since 2000. Notably, in addressing the above, the absence of evidence of a confirmed left shoulder diagnosis during, or short after, service should not serve as the sole basis for a negative opinion. Complete, clearly stated rationale for the conclusions reached must be provided. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Spann, Associate 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.