Citation Nr: 21011111 Decision Date: 02/27/21 Archive Date: 02/27/21 DOCKET NO. 10-06 257 DATE: February 27, 2021 REMANDED Service connection for a left shoulder / left arm disorder, to include as secondary to a service-connected partial left foot drop with left knee arthritis, is remanded. INTRODUCTION The Veteran served on active duty from April 1962 to April 1965 and from July 1965 to October 1968 in the U.S. Army. His awards and decorations include the Combat Infantryman Badge (CIB) due to participation in combat with the enemy 0in the Republic of Vietnam. This appeal has been advanced on the Board’s docket. 38 U.S.C. § 7107(b) (effective February 19, 2019); 38 C.F.R. § 20.800(c) (2020). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2008 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In July 2010, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the Veteran’s claims file. In May 2011, November 2014, June 2016, and June 2017, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review. REASONS FOR REMAND Service connection for a left shoulder / left arm disorder, to include as secondary to a service-connected partial left foot drop with left knee arthritis, is REMANDED. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, substantial compliance with the remand order, but not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). In any event, a failure by the Board to ensure compliance with previous remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In the present case, the AOJ did not substantially comply with some aspects of the development requested in the Board’s most recent June 2017 remand. That is, in accordance with the instructions of the Board’s June 2017 Board remand, the AOJ secured a November 2020 VA shoulder and arm examination and opinion from a VA nurse practitioner. This VA nurse practitioner also proffered a January 2021 VA clarification opinion. However, these VA medical opinions addressing the etiology of the Veteran’s left shoulder disorder on a secondary basis, although probative, are not fully adequate. That is, they did not provide a fully adequate rationale on whether the Veteran’s left shoulder disorder is aggravated or worsened by his service-connected partial left foot drop with left knee arthritis. See 38 C.F.R. § 3.310(b); Atencio v. O’Rourke, 30 Vet. App. 74, 90-91 (2018). On this point, when VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, Instruction #3 of the June 2017 Board remand requested that a VA examiner opine whether “it is at least as likely as not (a 50 percent probability or greater) that any current left shoulder disorder has been aggravated (permanently worsened beyond normal progression) by service-connect partial left foot drop disability, which is rated as paralysis of the sciatic nerve, and / or a cervical spine disorder (if service connection is granted for a cervical spine disorder).” (In March 2008 and September 2020 rating decisions, the AOJ has denied service connection for a cervical spine disorder). Also, Instruction #3 added that “[i]f aggravation is not shown, the VA examiner is requested to provide a rationale for the [earlier] opinion that the Veteran’s left shoulder, left hand, and left leg have different ‘pathologies[,] some of which are ‘interconnected’ on a ‘medical basis’ and not on an injury basis while in service.’ The VA examiner must explain how the Veteran’s left leg and left shoulder have interconnected pathologies but are not causally or etiologically related. The Board points out that the disorders do not need to share a common injury to be related.” In response, the Board has reviewed the November 2020 VA nurse practitioner opinion with January 2021 clarification opinion by the same VA nurse practitioner. The problem here is that these VA opinions were confusing and somewhat inconsistent in their language addressing the theory of secondary service connection. In particular, in the November 2020 VA opinion, the VA nurse practitioner opined that the Veteran’s service-connected partial left foot drop disability did not aggravate (worsen beyond its natural progression) the Veteran’s left shoulder disorder. Her rationale was that “[a]rthritis in one joint does not affect arthritis in another joint.” However, this rationale is flawed because the Veteran’s service-connected partial left foot drop is a neurological condition, not an arthritic one. Likewise, although the Veteran has been diagnosed with left acromioclavicular (AC) joint arthritis, he has also been diagnosed with a left shoulder rotator cuff tear and cervical myelopathy with left upper extremity weakness and paresthesias. That is, these currently diagnosed left upper extremity conditions are also not necessarily arthritic in nature. In addition, in the January 2021 clarification opinion, the VA nurse practitioner opined that “the left shoulder, left hand, and left leg can be interconnected on a medical basis of residual from a hemiplegic stroke and a cervical spine disorder after been seen at the VA Detroit by Neurologist, Jacob L. Gordon, MD., who surmised that left sided weakness, left arm and left leg, was consistent with a hemiplegic stroke.” This statement is somewhat confusing. The VA nurse practitioner did not provide any further detail or discussion of its meaning. Moreover, in the February 2021 Brief from the American Legion, the Veteran’s representative in effect challenged the competence of this VA nurse practitioner examiner and requested a new VA medical opinion from a “board certified specialist.” The Federal Circuit Court has held that the requirement that a veteran raise the issue of the competency of the VA medical examiner is best referred to simply as a “requirement” and not a “presumption of competency.” Francway v. Wilkie, 940 F.3d 1304, 1307-09 (Fed. Cir. Oct. 15, 2019). To challenge the competency of the VA medical examiner, a claimant is required to raise this challenge in the first instance. Id. Once the claimant has met this requirement and the challenge is raised, VA must satisfy its burden of persuasion as to the examiner’s qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the veteran. Id. First, therefore, although it will result in additional delay in adjudicating the appeal, a remand is required to ensure substantial compliance with the Board’s previous June 2017 Board remand. A new VA medical opinion from a clinician who has not previously provided a VA opinion for the Veteran is warranted that addresses the aggravation facet of secondary service connection for the left shoulder / left arm disorders. Another VA examination for the left shoulder / left arm disorders is not necessary unless the VA examiner specifically requests one. If possible, it would be helpful if this VA opinion was obtained from a VA neurological or VA orthopedic specialist, or someone similarly qualified. Second, the Veteran has stated and several of his available STRs indicate that in May 1968 during active duty in the Army he was hospitalized for a left leg injury on an inpatient basis at the 24th Evacuation Hospital in Long Binh, Vietnam; then at the 106th General Hospital in Yokohama, Japan; and finally at Martin Army Hospital at Fort Benning, Georgia. All of these inpatient hospitalizations appear to have occurred in May 1968. However, none of these STR “clinical” inpatient records at a military treatment facility (MTF) are present in the claims file. In previous Board remands, no attempt was made to secure them. At times during the appeal, the Veteran has reported left shoulder pain immediately after the service-connected left leg injury with hospitalization occurring after a firefight with the enemy in Vietnam. At other times, he has denied the existence of any left shoulder pain during active duty. In any event, VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C. § 5103A(a). VA is required to obtain a veteran’s STRs or other relevant service records held or maintained by a government entity. 38 U.S.C. § 5103A(c)(1)(A). When VA attempts to obtain records from a Federal department or agency, the efforts to obtain these records must continue until they are obtained unless it is reasonably certain they do not exist or that further efforts to obtain them would be futile. 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). In this vein, the records of STR inpatient or clinical treatment during service at an Army treatment facility are sent to the National Personnel Records Center (NPRC) after one calendar year but are kept in a separate file from the one containing other STRs. See M21-1 Live Manual, III.iii.2.B.4.a-e (March 1, 2019). Clinical records are rarely included in STRs because the treating facilities that create them retain the records for various time periods (one to 10 years depending on the branch of service) and then send them to the NPRC. Id. at Block c. The Board is unable to discern whether a specific request for inpatient “clinical” records was made in this case or whether the specific code (CO1-V) to request inpatient or “clinical” records was used. Id. at Block e. Given the relevance of any potentially missing inpatient or “clinical” STRs dated in May 1968 to the occurrence of an in-service combat-related injury to the left side of the Veteran’s body, the Board finds it necessary to remand the appeal to obtain any pertinent inpatient STRs in the possession of the NPRC, RMC, or another appropriate facility. Third, since the appeal is already being remanded for the above reasons, a remand is required for the AOJ to send additional notice to the Veteran pursuant to 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) – formerly known as the Veterans Claims Assistance Act of 2000 (VCAA). Since certain inpatient STRs are missing, a specific duty to notify letter is required that specifically addresses alternative sources of evidence the Veteran may submit in lieu of any missing STRs. In this regard, VA has failed to inform the Veteran of what kind of substitute or alternative evidence he could submit in order to support his claim. The Court has held that when service records are lost or missing or destroyed, in conjunction with a heightened duty to assist, VA must inform the Veteran that he can submit “alternative” sources in place of his missing service records. See Washington v. Nicholson, 19 Vet. App. 362, 369-370 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). Examples of such alternate evidence include the VA military files, statements from service medical personnel, “buddy” certificates or affidavits, state or local accident and police reports, employment physical examination reports, medical evidence from civilian/private hospitals, clinics, and physicians where or by whom a Veteran was treated, either during service or shortly after separation, letters written during service, photographs taken during service, pharmacy prescription records, and/or insurance examinations reports. Thus, a remand is required for the AOJ to provide the Veteran with a duty to notify letter advising the Veteran of what alternative evidence he can submit in place of any missing inpatient STRs. On a side note, the Board acknowledges that in the February 2021 Brief from the American Legion a new VA examination was requested to address the Veteran’s lay contention that he injured his left shoulder in 1968 during combat in a firefight with the enemy in Vietnam. The Veteran’s representative asserted that the VA examiners failed to consider the Veteran’s lay statements of in-service incurrence for his left shoulder. Miller v Wilkie, 32 Vet. App. 249, 257-62 (2020). However, a review of the claims file demonstrates this assertion from the Veteran’s representative is incorrect. Several VA examiners already adequately considered the Veteran’s lay statements regarding in-service incurrence for his left shoulder disorder. In other words, the Board is satisfied that the Veteran’s lay assertions regarding direct service connection for his left shoulder were already properly addressed by VA examiners of record. See e.g., June 2011, December 2014, January 2017, and August 2020 VA shoulder examinations and opinions. In fact, at various times during the appeal, the Veteran has indicated, or the clinical evidence of record confirms, that no left shoulder injury occurred during active duty and / or the Veteran did not experience any left shoulder pain during active duty. See e.g., August 1968 STR medical evaluation board (MEB) examination (showing normal upper extremities); July 2010 videoconference hearing testimony (Veteran did not experience left shoulder discomfort in 1968 while recuperating from left knee injury; rather, his left shoulder pain was a slow progression); September 1996 VA neurosurgery clinic note (only documenting left upper extremity symptoms after post-service 1984 gunshot wound); August 2001 VA neurologist record (left arm weakness began when he turned aged 40 – approximately in 1983); January 2017 VA shoulder and arm examination (Veteran reported his left shoulder and left arm weakness began one year after service but not during active duty). Therefore, unless additional, relevant evidence on direct service connection is forthcoming, no further questions need to be posed to a VA examiner on the issue of in-service incurrence for the left shoulder. This matter is REMANDED for the following action: 1. The AOJ should send the Veteran a corrective notice letter pursuant to 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) – formerly known as the VCAA. This letter should notify the Veteran that he can submit alternative sources in place of missing inpatient STRs. This letter should advise him that such alternate evidence includes VA military files, statements from service medical personnel, buddy certificates or affidavits, state or local accident and police reports, employment physical examination reports, medical evidence from civilian/private hospitals, clinics, and physicians where or by whom he was treated, either during service or shortly after separation, letters written during service, photographs taken during service, pharmacy prescription records, and/or insurance examinations reports. 2. After completion of step 1, the AOJ should contact the NPRC, RMC, or any other appropriate facility and attempt to obtain any additional inpatient or “clinical” records dated in May 1968 during active duty in the Army when he was hospitalized for a left leg injury on an inpatient basis at the following facilities: The 24th Evacuation Hospital in Long Binh, Vietnam; then at the 106th General Hospital in Yokohama, Japan; and finally at Martin Army Hospital at Fort Benning, Georgia. All of these inpatient hospitalizations appear to have occurred in May 1968 while in the Army. If any requested inpatient or clinical STRs are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these inpatient or clinical STRs must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. 3. After completion of steps 1-2, for the left shoulder / left arm disorder, obtain a new VA addendum opinion from a clinician who has not previously provided a VA medical opinion for the Veteran. If feasible, it would be helpful if this VA opinion was obtained from a VA neurological or VA orthopedic specialist, or someone similarly qualified. Only if deemed necessary by the VA examiner is another VA shoulder / arm examination necessary. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinions. The VA examiner is asked to provide a response to the following: (a.) Is any current left shoulder / left arm disorder “at least as likely as not” (i.e., 50 percent or more probable) aggravated by, i.e., worsened beyond its natural progression by the Veteran’s service-connected partial left foot drop with left knee arthritis? The VA examiner is cautioned to not combine the causation and aggravation facets of secondary service connection, as [under governing caselaw] they are independent concepts requiring separate findings and rationale. That is, a VA medical opinion cannot provide the same rationale to both the causation and aggravation elements and must distinguish between the two theories, as they are separate. For example, a disability can theoretically aggravate another disorder, even if it did not cause it. (b.) Also, the VA examiner is requested to review the reports of an earlier June 2011 VA shoulder examination from a VA physician and a January 2017 VA shoulder and arm examination from a VA neurologist (with the accompanying January 2017 VA medical opinion by same). The June 2011 VA physician assessed that “the left side of his physical structure, namely, the left shoulder, left arm, and left lower limb, is all somehow interconnected because of most likely different pathology.” The January 2017 VA neurologist assessed that the Veteran’s current left shoulder disorder with left hand weakness were not “proximately due to or caused by” his service-connected partial left foot drop. The January 2017 VA neurologist explained that the Veteran’s current left shoulder disorder with left hand weakness were the result of multi-factorial post-service causes – a post-service gunshot wound leaving shrapnel in his cervical spine in 1984 or 1994 causing “severe” cervical spine arthritis with radiculopathy; a possible stroke / hemiplegia; and aging. The January 2017 VA neurologist added that the Veteran’s left shoulder, left hand, and left leg have different ‘pathologies[,] some of which are ‘interconnected’ on a ‘medical basis’ but not on an injury basis while in service.’ After reviewing the June 2011 and January 2017 VA shoulder examinations and opinions noted above, the VA examiner is asked to answer the following: Can the Veteran’s left leg, left shoulder, and left hand disorders have interconnected pathologies, but yet not be causally or etiologically related in a secondary sense? In other words, please explain how and if the Veteran’s left leg, left shoulder, and left hand disorders are somehow “interconnected,” but not causing or aggravating one another, if that is the case? The Board cannot make a medical determination itself and requires further guidance on the meaning of the earlier medical opinions offered by the June 2011 and January 2017 VA shoulder examiners. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, 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.