Citation Nr: 21024869 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-19 698A DATE: April 26, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for a chronic dry eye disability is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for right hand tendonitis is remanded. Entitlement to service connection for left hand tendonitis is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right great toe bunion is remanded. Entitlement to service connection for left foot bunions is remanded. Entitlement to service connection for a cervical spine disability, to include acute muscle spasm, is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a dental disability is remanded. FINDINGS OF FACT 1. The Veteran does not have presently, nor did have at any time during the appellate period, a right shoulder disability. 2. The Veteran does not have presently, nor did have at any time during the appellate period, a left shoulder disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1986 to January 1990. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in January 2019 for further development by the RO. The case has been returned to the Board for further appellate action. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for a right shoulder disability 2. Entitlement to service connection for a left shoulder disability The Board finds that the Veteran does not have a current diagnosis of a bilateral shoulder disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board acknowledges the lay statements of record and the multiple medical treatment records noting shoulder pain. However, pain alone, without an accompanying diagnosis of a present disease, cannot qualify as a disability unless it reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). Here, an October 2005 private treatment record noted that the shoulder range of motion was intact. A June 2015 VA treatment record noted normal shoulder shrugs. An October 2015 VA treatment record noted normal strength of shoulder shrugs. A September 2018 VA treatment note noted right shoulder painful flexion and abduction. However, no functional impact was noted; this treatment note alone is insufficient to establish the present of a disability in light of the other evidence of record. The September 2019 VA examiner noted no diagnosis, pain on examination, or functional impact. While the Board is sympathetic to the claim, the Veteran in this case is not competent to provide a diagnosis regarding this issue. The issue is medically complex. She does not have the requisite specialized knowledge, training, or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Thus, service connection for bilateral shoulder disabilities is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for sinusitis is remanded. The RO obtained a September 2019 VA medical opinion. The opinion states that there is no medical evidence to support a diagnosis of chronic sinusitis. However, this medical opinion is inadequate. It is contradicted by medical findings dated January 2016 that the Veteran had a diagnosis of chronic sinusitis as of 2007. The case must be returned for an addendum opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). 2. Entitlement to service connection for a chronic dry eye disability is remanded. It was noted in the January 2019 Board remand that the January 2016 VA examiner linked this disability to the Veteran’s sinusitis. As the outcome of the Veteran’s claim for service connection for sinusitis may impact her claim of entitlement to service connection for a chronic dry eye disability, the latter claim is inextricably intertwined with the former claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). Therefore, adjudication of the claim of service connection for chronic dry eye must be deferred until the RO has adjudicated the Veteran’s remanded claim of service connection for sinusitis. 3. Entitlement to service connection for a right wrist disability 4. Entitlement to service connection for a left wrist disability 5. Entitlement to service connection for right hand tendonitis 6. Entitlement to service connection for left hand tendonitis The January 2019 Board remand directives instructed the RO to obtain medical examinations and opinions that addressed the Veteran’s lay statement that her disabilities began in service as well as the Veteran’s husband’s statement that the Veteran had hand pain during service. This was not substantially done; only the Veteran’s statements about typing were addressed, but not the reports about its effects at the time. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. On remand, the examiner will be asked to address these statements. Specifically, the Veteran has stated that on busy days during service, pain would last into the evening. She also self-medicated for many years during service, using over the counter medication, and bandage wraps. See August 2007 correspondence; August 2007 spouse’s statement. 7. Entitlement to service connection for a left foot disability is remanded. 8. Entitlement to service connection for a right great toe bunion is remanded. 9. Entitlement to service connection for left foot bunions is remanded. 10. Entitlement to service connection for a cervical spine disability, to include acute muscle spasm is remanded. 11. Entitlement to service connection for a lumbar spine disability is remanded. The January 2019 Board remand directives instructed the RO to obtain medical examinations and opinions that addressed the Veteran’s lay statements. The opinions were obtained; however, they do not address the Veteran’s lay statements. Where the Board fails to ensure substantial compliance with a prior remand, a subsequent remand is appropriate. Stegall, 11 Vet. App. at 271. On remand, the RO will be asked to obtain addendum opinions that address the Veteran’s lay statements. 12. Entitlement to service connection for a dental disability is remanded. The January 2019 Board remand directives instructed the RO to obtain a medical opinion on whether it was at least as likely or not that the Veteran’s loss of teeth during service is due to loss of substance of body of maxilla or mandible due to trauma or due to disease such as osteomyelitis, but not due to the loss of the alveolar process as a result of periodontal disease. However, this medical opinion is inadequate. It is single conclusory sentence that does not address the substance of the question. The case must be returned for an addendum opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, obtain an addendum opinion from an appropriate medical professional on the nature and etiology of the Veteran’s sinusitis. The claims file, as updated, must be made available to and reviewed by the examiner. The examiner is asked to opine on whether it is as least as likely as not (a 50 percent probability or greater) that any sinusitis is etiologically related (caused or aggravated), in whole or in part, to the Veteran’s active service. In rendering this opinion, the examiner must address the Veteran’s lay statements that her sinusitis began in service following nasal trauma. If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. 3. Following completion of directive #1, obtain addendum opinions from an appropriate medical professional on the nature and etiology of the Veteran’s bilateral hand and wrist disabilities. The claims file, as updated, must be made available to and reviewed by the examiner. The examiner is asked to opine on whether it is as least as likely as not (a 50 percent probability or greater) that any bilateral hand and wrist disabilities are etiologically related (caused or aggravated), in whole or in part, to the Veteran’s active service. In rendering this opinion, the examiner should address the Veteran’s and spousal lay statements on the impact of her MOS typing duties during service, namely, that on busy days, her hand pain would last into the evening and that she self-medicated for many years during service, using over the counter medication, pain rubs, and bandage wraps. If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. 4. Following completion of directive #1, obtain addendum opinions from an appropriate medical professional on the nature and etiology of the Veteran’s left foot disability, right great toe bunion, and left foot bunions, respectively. The claims file, as updated, must be made available to and reviewed by the examiner. The examiner is asked to opine on whether it is as least as likely as not (a 50 percent probability or greater) that any left foot disability, right great toe bunion, and left foot bunions are etiologically related (caused or aggravated), in whole or in part, to the Veteran’s active service. In rendering this opinion, the examiner should address the Veteran’s lay statements that military-issued footwear hurt her feet. If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. 5. Following completion of directive #1, obtain an addendum opinion from an appropriate medical professional on the nature and etiology of the Veteran’s lumbar spine disability. The claims file, as updated, must be made available to and reviewed by the examiner. The examiner is asked to opine on whether it is as least as likely as not (a 50 percent probability or greater) that any lumbar spine disability is etiologically related (caused or aggravated), in whole or in part, to the Veteran’s active service. In rendering this opinion, the examiner should address the Veteran’s lay statements that her MOS involved typing for long hours under poor ergonomic conditions, which caused undue stress on her back. If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. 6. Following completion of directive #1, obtain an addendum opinion from an appropriate medical professional on the nature and etiology of the Veteran’s cervical spine disability. The claims file, as updated, must be made available to and reviewed by the examiner. The examiner is asked to opine on whether it is as least as likely as not (a 50 percent probability or greater) that any cervical spine disability is etiologically related (caused or aggravated), in whole or in part, to the Veteran’s active service. In rendering this opinion, the examiner should address the Veteran’s lay statements that her MOS involved typing for long hours under poor ergonomic conditions, which affected her neck, or that the neck condition is related to the nasal trauma she incurred in service or otherwise related to her back pain. If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. 7. Following completion of directive #1, obtain an addendum opinion from an appropriate medical professional regarding the nature and etiology of the Veteran’s dental disability. The claims file, as updated, must be made available to and reviewed by the examiner. The examiner is asked to opine on whether it is as least as likely as not (a 50 percent probability or greater) that any dental disability is etiologically related (caused or aggravated), in whole or in part, to the Veteran’s active service. Specifically, the examiner should address the Veteran’s loss of teeth during service and whether it is due to loss of substance of body of maxilla or mandible due to trauma or due to disease such as osteomyelitis, but not due to the loss of the alveolar process as a result of periodontal disease. If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.