Citation Nr: 21022775 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-33 389 DATE: April 19, 2021 REMANDED Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for a head condition (to include history of TBI or head injury with residuals) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1964 to April 6, 1967 and the United States Navy from April 7, 1967 to January 1968. These matters are on appeal to the Board of Veterans’ Appeals (Board) from an August 2013 rating decision. A hearing was held by the undersigned Veterans’ Law Judge in November 2018; a transcript is of record. The Veteran’s claims have a long and extensive procedural history. Most recently, the Veteran’s claims were previously remanded by the Board in a December 2020 decision. The remand directives ordered the following actions: (1) obtain VA treatment records from the Williston VA clinic and (2) contact the Veteran and afford him the opportunity to identify by name, address, and dates of any relevant treatment records or examinations. The Board finds that the RO has substantially complied with the December 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the AOJ did obtain the VA medical records and contacted the Veteran as requested. The Veteran did not identify any relevant medical records. VA’s duty to assist is not always a one-way street and if a Veteran wishes for help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). 1. Entitlement to service connection for a right shoulder condition is remanded. The Veteran contends that his right shoulder condition is the result of an injury received in service while serving on the U.S.S. Coral Sea in 1968. The Veteran was previously afforded a VA examination regarding his right shoulder condition in July 2015. The examiner concluded that the Veteran’s right shoulder condition “less than likely was incurred in military service based on a preponderance of evidence.” The examiner based this opinion on a lack of any treatment for a shoulder injury in the Veteran’s service treatment records. The Board notes, however, that the Veteran’s service treatment records from his Navy service are unavailable. Since the time of the examination, additional evidence has been submitted regarding the Veteran’s right shoulder condition. In an August 2015 lay statement, the Veteran reported that he went to sickbay following his shoulder injury in service. The Veteran also reported that he was put on light duty during service following the injury. The Veteran further explained the nature of his injury in the November 2018 Board hearing. He explained that his arm “came out” while pulling a tow bar on the U.S.S. Coral Sea. The Veteran reported he was put on light duty and given a sling for his right arm. The Veteran also reported a continuity of minor symptoms to the present. Thus, the Board finds that the July 2015 VA examiner’s opinion is inadequate. As previously noted, the absence of contemporaneous records is an insufficient rationale for a medical nexus opinion. See Buchanan, 451 F.3d at 1337. Additionally, relevant evidence has been added by the Veteran that has not been considered by the VA examiner. A medical opinion is inadequate if it does not consider all the evidence of record, including lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 2. Entitlement to service connection for a head condition (to include history of TBI or head injury with residuals) is remanded. The Veteran contends that he experiences residuals of a head injury incurred in service. Specifically, in an August 2015 statement, the Veteran reported that he knocked himself out after hitting a probe below an airplane. The Veteran reported he had a concussion and continues to experience a sharp pain behind his right ear. The AOJ has already conceded that the Veteran has residuals of a head injury. Thus, competent evidence of a current disability has been established. The Veteran reported the initial head injury occurred in service, and he has continued to experience symptoms that may be associated with the Veteran’s current disability. However, there is insufficient competent medical evidence on file for the Board to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 80 (2006). Thus, remand is necessary for a VA examination to determine the nature and etiology of the Veteran’s current head condition. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of any relevant treatment records or examinations. After securing the necessary releases, attempt to obtain identified treatment records. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right shoulder condition is at least as likely as not related to his injury sustained during his military service. It is left up to the examiner to determine whether an additional examination is necessary. The examiner is asked to specifically consider the statements offered by the Veteran in his August 2015 lay statement and during his November 2018 Board hearing testimony. Any opinion expressed should be accompanied by a complete rationale and must not be solely based on the lack of evidence including in the service treatment records. 3. Schedule the Veteran for a VA examination for his head condition (to include history of TBI or head injury with residuals). The examiner must review the claims file. The examiner is asked to identify the nature and etiology of any current head injury residuals. The examiner is then directed to provide an opinion on whether the Veteran’s head is at injury residuals are at least as likely as not related to the Veteran’s military service. (Continued on next page) The examiner is asked to specifically consider the statements offered by the Veteran in his August 2015 lay statement and during his November 2018 Board hearing testimony. Any opinion expressed should be accompanied by a complete rationale and must not be solely based on the lack of evidence including in the service treatment records. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.