Citation Nr: 21021778 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-08 411 DATE: April 14, 2021 REMANDED Entitlement to service connection for a bilateral shoulder disability is remanded. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected bilateral knee disability, is remanded. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected bilateral knee disability, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1979 to May 1981. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. The Board remanded these matters in July 2018 for further development. Unfortunately, the Board is not satisfied that there was substantial compliance with its prior remand instructions; therefore, the appeal must be remanded once again. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). During the appeal process, the Veteran’s service connection claims for the bilateral shoulders, cervical spine, and lumbar spine have been treated as claims to reopen based on new and material evidence. However, the Board notes that the present appeal arises out of the Veteran’s August 2011 and December 2011 requests for reconsideration, which were received within one year of the original June 2011 rating decision denying the service connection claims. Thus, the June 2011 rating decision did not become final and there is no requirement for new and material evidence in order to adjudicate the Veteran’s service connection claims. Moreover, the Board has also decided to split the Veteran’s claim for a cervical and lumbar spine disability into two separate issues since the claimed disabilities involve distinct anatomical locations as recognized under VA law. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235-5243 (providing for separate evaluations for disabilities of the cervical and thoracolumbar spine). Accordingly, the Board has recharacterized the claims on appeal to reflect the above developments. 1. Entitlement to service connection for a bilateral shoulder disability is remanded. The Veteran seeks service connection for a bilateral shoulder disability, diagnosed as bilateral strain and osteoarthritis, which he asserts is due to injuries he sustained in-service while playing basketball, as well as due to the strain of lifting and moving heavy objects while performing his military occupational specialty (MOS) of material storage and handling specialist. The Board notes that a June 1983 service treatment record (STR) documents a complaint of right shoulder pain. The Veteran was noted to have previously dislocated his right shoulder in August 1982 while playing basketball. The record indicates that the Veteran was a member of the National Guard when he sought treatment in June 1983, although his duty status at the time is unknown. As an initial matter, the Board notes that the record contains evidence that the Veteran may have incurred a right shoulder injury during National Guard service. Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). For purposes of determining qualifying National Guard service, active duty service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training (INACDUTRA) during which the person was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Annual training is an example of ACDUTRA, while weekend drills are considered INACDUTRA. As noted above, the Veteran’s National Guard STRs indicate that the Veteran may have incurred an injury to his shoulder during a period of ACDUTRA or INACDUTRA. Therefore, before the Board can fairly adjudicate the Veteran’s claim, VA must attempt to verify the Veteran’s duty status when he injured his right shoulder in August 1982 and June 1983, that is, whether he was on active duty, or a period of ACDUTRA or INACDUTRA. Only service department records can establish if and when a person served on active duty, ACDUTRA, or INACDUTRA. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). It does not appear that the RO has made a request for the Veteran’s National Guard service department records. As such, the Board finds that remand is warranted for the RO to make reasonable attempts to verify, through service department records, the periods of the Veteran’s duty status (i.e. ACDUTRA or INACDUTRA) during his National Guard service, with particular focus on his duty status in August 1982 and June 1983. After confirming the Veteran’s periods of ACDUTRA and INACDUTRA, the RO must also confirm that all STRs from these periods have been obtained and associated with the claims file. Pursuant to the July 2018 Board remand, the Veteran underwent a VA examination in August 2019. At the examination, the Veteran reported to the VA examiner that he received treatment for a right shoulder dislocation in 1981 at East Alabama Medical Center. He further stated that also in 1981, he was playing basketball when he collided with another service member and dislocated his left shoulder. His left shoulder was treated at Russell Hospital. Based on these statements, as well as the June 1983 STR documenting the Veteran’s complaint of right shoulder pain, the VA examiner opined that the Veteran’s bilateral shoulder disability was at least as likely as not incurred in or caused by an in-service injury. Unfortunately, the Board is unable to rely on this favorable opinion as a basis to grant service connection because the VA examiner erroneously stated that the June 1983 incident occurred during the Veteran’s active duty service, which, as previously discussed, has not yet been verified. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an incomplete or inaccurate factual premise has no probative value). The RO obtained an addendum opinion from the same VA examiner in July 2020. In this opinion, the VA examiner determined that the Veteran’s bilateral shoulder disability was less likely than not incurred in or caused by an in-service injury. Her rationale for this opinion was that the 1983 complaint of right shoulder pain was acute only and that there was no objective evidence of chronicity of symptoms. The Board finds this rationale to be inadequate because it ignores the Veteran’s reports of experiencing pain and dislocations of his shoulder both during service and ever since service. Moreover, the Board finds it curious that the VA examiner provided an opinion that directly contradicted her earlier August 2019 opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In light of the above, the Board finds that the record still does not contain a medical opinion that is sufficient to fairly decide the Veteran’s service connection claim for a bilateral shoulder disability. As such, the Board finds that the RO did not comply with the Board’s prior remand directives to obtain an adequate medical opinion on the Veteran’s behalf.  See Stegall, 11 Vet. App. at 268.  On remand, a medical opinion must be obtained that is adequate for the Board to make an informed decision on the Veteran’s claim.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009).  Finally, the Board notes that the record indicates that there may be outstanding private treatment records that are pertinent to the Veteran’s claim. As noted above, the Veteran reported receiving treatment in 1981 for a right shoulder dislocation at East Alabama Medical Center, and for a left shoulder dislocation at Russell Hospital. However, these relevant medical records have not yet been requested or associated with the Veteran’s claims file.  As this evidence may be pertinent to the Veteran’s service connection claim, on remand, the RO must take appropriate steps to obtain these records.  2. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected bilateral knee disability, is remanded. 3. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected bilateral knee disability, is remanded. The Veteran seeks service connection for cervical and lumbar spine disabilities, which he asserts are due to injuries he sustained in-service while playing basketball, as well as due to the strain of lifting and moving heavy objects while performing his MOS of material storage and handling specialist. The Veteran’s STRs document that he sought treatment for neck pain in January 1981 and back pain in 1981 (month unknown). Pursuant to the July 2018 Board remand, the Veteran underwent a VA examination in August 2019. The VA examiner opined that the Veteran’s cervical and lumbar spine disabilities were at least as likely as not incurred in or caused by an in-service injury. Unfortunately, the Board is unable to rely on this favorable opinion as a basis to grant service connection because it was conclusory and not based on any objective medical evidence in the record. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thereafter, the RO obtained an addendum opinion from the same VA examiner in July 2020. However, just as with the medical opinion for the bilateral shoulder disability, the VA examiner provided a negative etiology opinion that directly contradicted her earlier August 2019 opinion. Moreover, the rationale provided was not medically sufficient. As such, the Board is unable to rely on the either of the opinions provided by the VA examiner to adjudicate the Veteran’s claims. See Nieves-Rodriguez, 22 Vet. App. at 302-04. In light of the above, the Board finds that the record still does not contain a medical opinion that is sufficient to fairly decide the Veteran’s service connection claims for cervical and lumbar spine disabilities. As such, the Board finds that the RO did not comply with the Board’s prior remand directives to obtain an adequate medical opinion on the Veteran’s behalf.  See Stegall, 11 Vet. App. at 268.  On remand, a medical opinion must be obtained that is adequate for the Board to make an informed decision on the Veteran’s claims.  See Barr, 21 Vet. App. at 311-12; Douglas, 23 Vet. App. at 26.   Furthermore, the Board notes that in a March 2021 appellate brief, the Veteran’s representative raised the theory of entitlement to service connection on a secondary basis, arguing that the Veteran’s service-connected bilateral knee disability results in an altered gait that caused or aggravated the Veteran’s cervical and lumbar spine disabilities. As such, the VA opinion requested on remand must adequately address this new theory of entitlement to service connection on a secondary basis. 4. Entitlement to a TDIU is remanded. The Veteran’s TDIU claim is inextricably intertwined with the service connection claims remanded herein, as the resolution of those claims may have bearing upon the claim for a TDIU. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, the Board finds that adjudication of the Veteran’s TDIU claim would be premature and it must be deferred pending adjudication of the service connection claims on appeal. Accordingly, the matters are REMANDED for the following actions: 1. Undertake appropriate action to verify the periods of the Veteran’s duty status (i.e. active duty, ACDUTRA, or INACDUTRA) by obtaining the Veteran’s outstanding National Guard service personnel records, to include contacting the Veteran’s National Guard unit, the National Personnel Records Center (NPRC), or any other appropriate entity. Make as many requests as are necessary to obtain these records. If the records are deemed to be unavailable, the claims file must be annotated as such and the Veteran must be notified. 2. Contact the Veteran and request that he provide information as to any outstanding private treatment records relevant to his appeal, to include records from his 1981 treatment at East Alabama Medical Center and Russell Hospital. After obtaining the necessary authorization from the Veteran, the RO must make reasonable efforts to obtain any identified records. 3. Then, obtain addendum opinions from a VA physician of appropriate expertise (i.e. an orthopedist) discussing the nature and etiology of the Veteran’s claimed disabilities of the shoulders, cervical spine, and lumbar spine. An in-person examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and the review should be noted in the examination report. Thereafter, the VA examiner is asked to provide a fully-articulated medical opinion addressing the following: Bilateral Shoulder Disability (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral shoulder disability was incurred in or caused by an in-service injury, event, or illness? The requested opinion must specifically address and consider the relevant evidence of record, to include the Veteran’s lay statements and hearing testimony attesting to suffering repeated in-service shoulder injuries and dislocations while performing his MOS duties, as well as the June 1983 National Guard service treatment record documenting a right shoulder injury and prior dislocation. Cervical and Lumbar Spine Disabilities (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s cervical and/or lumbar spine disabilities were incurred in or caused by an inservice injury, event, or illness? In providing a response to the above, the examiner must specifically address and consider the Veteran’s lay statements and hearing testimony attesting to in-service neck and back injuries while performing his MOS duties and while playing basketball, and the 1981 service treatment records documenting neck and back pain. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s cervical and/or lumbar spine disabilities are caused by his service-connected bilateral knee disability? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s cervical and/or lumbar spine disabilities are aggravated by (increased in severity beyond its natural progression) his service-connected bilateral knee disability? In providing separate responses to questions (b) and (c), the examiner must specifically consider and discuss the medical literature cited by the Veteran’s representative in the March 2021 brief which suggests that an altered gait due to a lower extremity disability may worsen spine disabilities. The examiner is advised that the Veteran is considered competent to report his medical history, including when his symptoms began, and such reports must be acknowledged and considered in formulating any opinion. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disabilities and military service. The examiner must provide a complete rationale for any opinion offered, citing to the examiner’s own expertise, medical principals, and/or evidence in the Veteran’s record, when necessary, to support the conclusion reached. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.