Citation Nr: 21021252 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 99-16 960 DATE: April 12, 2021 REMANDED Entitlement to service connection for left shoulder disability, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1970 to October 1973. This matter initially came before the Board of Veterans’ Appeals (Board) from a March 1998 rating decision. The Veteran testified before a hearing officer and a Veterans Law Judge (VLJ) at hearings in October 1999 and August 2006, respectively, and transcripts of the hearings are of record. In October 2006, the Board remanded the issue of whether new and material evidence had been received to reopen a claim of service connection for left shoulder disability for further development. In October 2010, the Board granted the Veteran’s application to reopen the claim of service connection for left shoulder disability and remanded the underlying claim for further development. The Board again remanded this matter in August 2012 for further development. Subsequently, the Board notified the Veteran that the VLJ who conducted the August 2006 hearing was no longer employed by the Board and informed him of the right to another hearing. 38 C.F.R. § 20.604. The Veteran elected to appear for a new hearing. Accordingly, this matter was remanded in March 2015 to schedule him for a new hearing and he testified before another VLJ in March 2016. A transcript of the hearing is of record. In May 2016, March 2018, June 2020, and October 2020, the Board remanded this matter for further development. In February 2021, the Veteran was informed that the VLJ who held the March 2016 hearing was no longer employed by the Board, and he was given an opportunity to appear at another hearing. 38 C.F.R. § 20.604. The letter informed the Veteran that, if no response was received in 30 days, the Board would assume he did not want another hearing. The February 2021 letter was sent to the Veteran’s address of record and was not returned as undeliverable. A copy of the letter was also sent to his representative. The Veteran has not responded to the letter. Therefore, it is assumed he does not want another hearing and no further action concerning a Board hearing is necessary. Entitlement to service connection for left shoulder disability, to include as secondary to service-connected disabilities, is remanded. The Board is cognizant of the fact that this matter has been in adjudicative status for years and has already been remanded multiple times in the past. Nevertheless, as explained in more detail below, the Board finds that it is necessary to obtain an adequate medical opinion as to whether the Veteran’s claimed left shoulder disability is related to service or is caused or aggravated by service-connected disabilities. Consequently, the Board wishes to assure the Veteran that it would not be remanding this matter again unless it was essential for a full and fair adjudication of his claim. The Veteran’s appeal was most recently before the Board in October 2020, at which time it was remanded for additional development. Significantly, the Board determined that a June 2020 VA medical opinion was insufficient to adjudicate the claim as the opinion failed to substantially comply with the Board’s June 2020 remand directive that the examiner specifically comment on the Veteran’s claimed in-service fight as reported in an October 2006 letter from Dr. R.J.E. Furthermore, with regard to secondary service connection, the Board determined that the June 2020 opinion was insufficient to adjudicate the claim as the examiner failed to provide sufficient rationale supporting the unfavorable secondary service connection opinion. Another VA medical opinion was obtained from a VA physician assistant in November 2020. However, the opinion again does not substantially comply with the prior remand directives such that another remand is unfortunately required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Significantly, the physician assistant’s negative opinion was based almost entirely on the lack of in-service treatment for a left shoulder disorder and the fact that the Veteran was able to perform his normal physical duties for the remainder of his active duty service. The physician assistant once again failed to specifically comment on the Veteran’s in-service fight noted in the October 2006 letter. Instead, he merely noted that the letter was reviewed. Furthermore, although the physician assistant also provided a negative secondary service connection opinion, this too does not substantially comply with the prior remand directives. He opined that the Veteran’s left shoulder disorder was less likely than not caused or aggravated by his service-connected disabilities. In support of this conclusion, the physician assistant stated that there was no medical evidence to show that the Veteran’s service-connected disabilities would be causative of a left shoulder disability. This opinion and rationale are deficient for two reasons. First, the physician assistant did not provide a sufficient rationale upon which the Board could render a fully-informed decision. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). Furthermore, although the physician assistant concluded that the Veteran’s left shoulder disorder was not aggravated by his service-connected disabilities, the supporting rationale exclusively focuses on causation. In other words, the opinion does not separately address (with separate findings and rationale) why the Veteran’s claimed left shoulder disability is not caused or aggravated by his service-connected disabilities. See Atencio v. O’Rourke, 30 Vet. App. 74, 90-91 (2018); El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Thus, to ensure an adequate record upon which to decide the Veteran’s claim, and to ensure substantial compliance with the prior remand directives, a new VA medical opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Tennessee Valley Healthcare System (dated to October 2020), the Memphis Vista electronic records system (dated to August 2015), and the Atlanta VA Health Care System (dated to August 2011). Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. Lastly, on remand, the Veteran should be given the opportunity to identify any outstanding evidence pertinent to his remaining claim on appeal. The matter is REMANDED for the following action: 1. Give the Veteran the opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The agency of original jurisdiction (AOJ) should then attempt to obtain those records if he provides the appropriate authorization. 2. Obtain the Veteran’s outstanding VA treatment records from the Tennessee Valley Healthcare System for the period since October 2020; the Memphis Vista electronic records system for the period since August 2015; the Atlanta VA Health Care System for the period since August 2011; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left shoulder disability is caused by service or is caused or aggravated by service-connected disability(ies). The record and a copy of this remand must be made available to the clinician. The clinician should review the entire history and progression of the Veteran’s claimed left shoulder disability, to include his reported in-service fight. Following a review of the entire record, the clinician should address the following questions: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any left shoulder disability experienced by the Veteran since approximately May 1997 (1) had its onset during service; (2) had its onset within one year of his separation from service (in the case of any currently diagnosed arthritis); OR (3) is otherwise related to his active service, to include his reported in-service fight and the left arm problems documented in his service treatment records? In offering this opinion, the opinion must reflect consideration of the full record, to include the Veteran’s reported in-service fight that was noted in the October 2006 letter from Dr. R.J.E. and the evidence of left arm problems documented in his service treatment records. The clinician must provide specific discussion of the Veteran’s claimed in-service fight that occurred in 1971 or 1972, and she/he must provide a specific discussion of the October 2006 positive medical opinion provided by Dr. R.J.E. b) Notwithstanding the above, the clinician must separately address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any left shoulder disability experienced by the Veteran since approximately May 1997 was (1) caused by any service-connected disability(ies); OR (2) aggravated beyond its natural progression by any service-connected disability(ies)? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered with separate rationales. In offering any opinion, the clinician must consider the full record, to include the Veteran’s lay statements regarding in-service incurrence and continuity of symptomatology, and the opinion should reflect such consideration. If the clinician rejects the Veteran’s lay statements, the clinician must provide reasons for doing so, and lay statements must not be rejected due solely to an absence of contemporaneous or corroborating medical evidence, although this may be considered together with the other evidence of record. (CONTINUED ON NEXT PAGE) A complete rationale must be provided for all opinions and must be based on consideration of all pertinent lay and medical evidence. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.