Citation Nr: 21026171 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 14-19 820 DATE: April 30, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1970 to April 1974 in the Air Force and from August 1974 to June 1976 in the Navy, with additional service in the Reserves. These matters come before the Board of Veterans’ Appeals (the Board) on appeal from a June 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In his May 2014 VA-Form 9 appeal to the Board, the Veteran requested a hearing before a Veterans Law Judge. However, in an October 2015 correspondence, the Veteran indicated his desire to waive his right to testify at a hearing. Accordingly, the hearing request is deemed withdrawn. In a January 2020 decision, the Board denied the Veteran’s claim for service connection for a right shoulder disability and remanded his claim for service connection for an acquired psychiatric disorder for further development. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (the Court). In a December 2020 Order, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board’s denial of service connection for the Veteran’s right shoulder disability, and remanded the claim to the Board for readjudication consistent with the JMPR. The Board previously remanded both of these matters in March 2018, and the issue of service connection for an acquired psychiatric disorder in January 2020, for further development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its January 2020 remand; therefore, the issue of service connection for an acquired psychiatric disorder must once again be remanded.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008).  1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD, on either a direct basis, as initially manifesting in service, or on a secondary basis, as related to his service-connected diabetes mellitus and/or bilateral lower extremity diabetic neuropathy. Pursuant to its January 2020 remand, the Board sought an addendum opinion addressing whether the Veteran’s currently-diagnosed depression is related to or aggravated by his service-connected diabetes mellitus and/or his service-connected bilateral lower extremity diabetic neuropathy. In a February 2020 opinion, the examiner opined that the Veteran’s depression is less likely than not proximately due to or the result of or aggravated beyond its natural progression by his service-connected diabetes mellitus and/or bilateral lower extremity diabetic neuropathy. In support of his conclusion, the examiner noted nothing in the Veteran’s medical records supportive of a link between these disabilities and the Veteran’s depression. However, in providing this negative opinion the examiner failed to specifically consider the treatment notes addressed by the Board in its January 2020 decision. Based on the above, the Board finds that the record does not contain a medical opinion addressing secondary service connection that is sufficient to fairly decide the Veteran's claim. Therefore, the claim must be remanded once again because the RO did not comply with the Board's prior remand directive to obtain an adequate medical opinion on behalf of the Veteran. See Stegall, 11 Vet. App. at 268. On remand, an addendum 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, 21Vet. App.303, 311-12 (2007); Douglas v. Shinseki, 23Vet. App.19, 26 (2009). 2. Entitlement to service connection for a right shoulder disability is remanded. The Veteran seeks service connection for a right shoulder disability which he contends is related to an in-service fall that resulted in a right shoulder injury and arm and hand surgery. See July 2012 Notice of Disagreement. The Veteran’s VA treatment records indicate a current diagnosis of right glenohumeral and acromioclavicular degenerative arthrosis and/or right shoulder arthritis. See generally VA treatment records. In January 2020, the Board denied the Veteran's claim for service connection for a right shoulder disability. Subsequently, the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). Pursuant to the December 2020 JMPR, the parties agreed, in part, that the Board erred by failing to offer adequate reasons or bases for its finding that a medical examination was not warranted in the Veteran's case. October 1973 service treatment records (STRs) reflect that the Veteran sustained an injury to his right finger when he fell off a ladder while painting. In statements submitted throughout the period on appeal, the Veteran maintains that his right shoulder was dislocated as a part of this same injury. The Veteran further states that a “battalion medic put [his] shoulder back into place.” See August 2012 Notice of Disagreement, June 2013 Statement in Support of Claim. In light of the Veteran’s currently diagnosed disability, and in consideration of his lay statements, the Board finds that the Veteran shoulder be a afforded a VA examination to determine the nature and etiology of his right shoulder disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the matters are REMANDED for the following actions: 1. Right Shoulder Disability Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s bilateral shoulder disability. The claims file and a copy of this REMAND must be made available to the examiner for review, and that review must be noted in the report. All indicated tests should be performed. Thereafter, the examiner is asked to provide an opinion with respect to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's current right shoulder disability was incurred in or caused by an in-service injury, event, or illness, to include the October 1973 in-service fall? The examiner is advised that the Veteran is competent to report his medical history, including the onset and continuity of symptoms, 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 disability and military service. In providing the requested opinion, the examiner must specifically consider and address the following: • The Veteran’s June 2013 statement that he dislocated his right shoulder incident to his October 1973 in-service fall from a ladder and that a battalion medic put his shoulder back into place • The Veteran’s reports that he has suffered right shoulder pain since dislocation in-service in 1973. • The Veteran’s June 2010 report to a VA physician that he fell in-service resulting in right shoulder dislocation and hand cuts, that a medic popped the dislocated shoulder back into place, and that he went to surgery for the cuts and stickers but forgot about the dislocation when asked by ortho. The examiner is reminded that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. 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 claims file, 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). 2. Acquired Psychiatric Disability Forward the Veteran’s claims file to a VA examiner of appropriate expertise who has not previously provided an opinion in this case. The examiner must review the entire claims file, to include a copy of this REMAND, and that review must be noted in the report. If a new examination is required to answer the questions posed below, such should be scheduled. Thereafter, the examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that any currently-diagnosed acquired psychiatric disorder, to include depression, is related to or proximately due to the Veteran’s service-connected diabetes mellitus and/or bilateral lower extremity diabetic neuropathy? (b) Is it at least as likely as not (50 percent or greater probability) that any currently-diagnosed acquired psychiatric disorder, to include depression, is aggravated beyond its natural progression by the Veteran’s service-connected diabetes mellitus and/or bilateral lower extremity neuropathy? In providing the requested opinion, the examiner must specifically consider and address the following: • January 2013 VA treatment note that pain contributes significantly to the Veteran’s mood and lists “chronic debilitating disease” as a contributing environmental and/or psychosocial factor for the Veteran’s diagnosed depression. • March 2014 VA treatment note that pain interferes with the Veteran’s general activity, mood, sleep, and enjoyment of life. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the Veteran is competent to report his medical history, including the onset and continuity of symptoms, 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 disability 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 claims file, 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 C. Gates 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.