Citation Nr: 21011123 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 07-26 730 DATE: March 1, 2021 REMANDED Entitlement to service connection for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran served in the Navy Reserves on June 20, 2000, February 1-15, 2001, September 20-29, 2001, October 28-November 1, 2001, December 11-13, 2002, January 5-17, 2003, May 11-23, 2003, and July 5-16, 2004. She served during additional periods of INACDUTRA, to include on February 5, 2005. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from an August 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As a procedural matter, the Veteran testified before a Veterans Law Judge (VLJ) sitting at the Waco, Texas RO in June 2012. A copy of the hearing transcript is of record and has been reviewed. However, the VLJ who conducted the June 2012 hearing is no longer employed at the Board. The Veteran was sent a June 2013 letter to determine if she wanted an additional hearing with another VLJ, but the Veteran declined in July 2013. In June 2012, the Board denied entitlement to service connection for a right shoulder disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The Court granted a June 2013 joint motion for remand (JMR) on the basis that the prior VA examinations were inadequate. In September 2013 and August 2016, the Board remanded the service connection claim for a right shoulder disability for examinations and etiology opinions. Subsequently, the Board denied the claim in December 2018. The Veteran appealed to the Court, and the Court granted a JMR in November 2019. The December 2018 Board decision found that the August 2018 VA medical opinion, which was favorable to the Veteran, was less probative than the September 2013 and August 2016 medical opinions because it was based on inaccurate facts; however, the JMR pointed out that the Board did not explain why the September 2013 and August 2016 medical opinions, which had previously been determined to be inadequate, were probative to decide the claim. The Board further remanded the claim in September 2020. The Board found that the July 2018 medical opinion was based on inaccurate facts. Additionally, previous VA medical opinions have already been determined to be inadequate for various reasons. Therefore, at the time of the September 2020 Board remand, there was no adequate medical opinion of record to decide the claim. The Board remanded the claim to obtain an additional VA medical opinion as to the nature and etiology of the Veteran’s right shoulder disability. The Veteran was afforded an additional VA examination in November 2020. The examiner’s opinion relied entirely on the absence of documentation in service treatment records and did not acknowledge the Veteran’s lay statements, much less attempt to reconcile them with this opinion. Although the Board regrets the additional delay, because there was not substantial compliance with the remand directives, another remand is necessary to obtain an adequate medical opinion. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a right shoulder disorder is remanded. Additional development is necessary prior to adjudicating the appellant’s claim for service connection for a right shoulder disability. In its September 2020 remand, the Board directed the AOJ to obtain an addendum opinion from an appropriate clinician to determine the etiology of the right shoulder disabilities. The Board also directed that each of the Veteran’s contentions must be considered. The September 2020 VA Disability Benefits Questionnaire (DBQ) included both an in-person examination and review of the VA e-folder. The September 2020 VA DBQ exam reflected that the Veteran was diagnosed with right rotator cuff tendonitis and right shoulder bursitis. The medical history section reflects the Veteran’s statement that while on duty for the reserves, she was lifting pallets and unloading material when she felt a “pop” in her right shoulder, and was subsequently diagnosed with tendonitis and bursitis by a civilian doctor in December 2004. However, the VA examiner’s rationale did not incorporate the Veteran’s lay statements into their rationale. The VA examiner found that the Veteran’s right shoulder condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the VA examiner stated that the Veteran’s medical records do not currently support the claimed right shoulder disability is due to bursitis and tendonitis, therefore the condition is less likely than not incurred in or caused by service. The VA examiner observed that although the Veteran has civilian medical records that support the claim of a right shoulder injury from 2005, there are no service treatment records to substantiate service connection. The VA examiner also noted that the Veteran was in the Reserves until 2006, but there are no medical records or complaints from active Reserve duty that show an injury or disability occurring in duty, therefore the condition is less likely than not incurred in or caused by service. The September 2020 VA DBQ examination is inadequate as the examiner primarily relies on the absence of complaints or diagnoses of the right shoulder conditions during service. The absence of treatment records cannot be the sole basis for the denial of a service connection claim. See Dalton v. Peake, 21 Vet. App. 23 (2007) (a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination)). Therefore, an additional medical opinion is necessary to determine the nature and etiology of the Veteran’s right shoulder disabilities. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities noted at the time of entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. If a condition is noted on an entrance examination report, the presumption of soundness never attaches – the only benefits that can be awarded are for aggravation of such condition by application of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In its September 2020 remand, the Board instructed the examiner to provide an opinion as to whether the Veteran’s bursitis and tendonitis, which were diagnosed in December 2004, were aggravated during the subsequent INACDUTRA period on February 5, 2005. The VA examiner opined that the Veteran’s bursitis and tendonitis were less likely than not aggravated beyond natural progression by the training periods in February 2005. In so finding, the VA examiner stated that the Veteran’s medical records were reviewed and there does not appear to be substantial service treatment records to link the shoulder condition to service or service-related aggravation. The examiner also stated that there are no noted incidents of shoulder pain or complaint in service treatment records, and due to the lack of medical evidence, the condition is less likely than not aggravated beyond natural progression by service at this time. The VA examiner’s aggravation opinion is also inadequate. The VA examiner solely relies on the fact that the Veteran’s service treatment records were silent as to complaints of shoulder pain. Therefore, as the opinion only relies on the fact that there is no evidence in the service treatment records, an addendum opinion is also necessary. The VA examiner was also directed to opine as to whether the Veteran’s currently diagnosed right shoulder disabilities were caused by or is otherwise related to the presence of a small cervico-suprascapular mass or the removal of the cervico-suprascapular mass. The examiner adequately explained that the Veteran’s tendonitis and bursitis are independent of the Veteran’s cervico-suprascapular mass, and these conditions are typically due to overuse and/or repetitive trauma injuries. The matters are REMANDED for the following action: 1. Refer the Veteran’s claims folder to an appropriate clinician for an addendum opinion for her right shoulder disability. Whether a physical examination is necessary is left to the examiner’s discretion. The claims file and a copy of this remand must be made available for review. The examiner must provide opinions as to the following: a. Whether it is at least as likely as not (a probability of 50 percent or greater) that any current right shoulder disability, including tendonitis and bursitis, began in service, was caused by service, or is otherwise related to the Veteran’s active service, including the removal of a cervicosprascapular mass, as noted in the August 2004 report of Medical Examination and December 2004 private treatment records). b. Whether any right shoulder disability, to include tendonitis and bursitis diagnosed in December 2004, were aggravated during or as a result of the subsequent INACDUTRA period on February 5, 2005. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the: c. December 2004 private treatment records showing the Veteran had a history of pain and containing a diagnosis of tendonitis and bursitis. d. May 2005 private treatment records noting continued symptoms of tendonitis and a diagnosis of rotator cuff tendonitis. e. March 2010 hearing testimony where the Veteran testified that she did not explicitly remember an in-service injury but testified that she moved pallets and tore down objects, and by the time her weekends were over she was in pain all over. The rationale for any opinion expressed should be provided. Note the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should explain why. (Continued on the next page)   2. Then, readjudicate the claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. DeVerter, 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.