Citation Nr: 21026291 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 07-22 132 DATE: April 30, 2021 REMANDED Entitlement to service connection for right shoulder strain is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1980 to October 1980. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for a right arm and shoulder condition. The Veteran filed a timely notice of disagreement, received by VA in March 2007. In June 2007, the RO issued a statement of the case. The Veteran’s substantive appeal was received by VA in July 2007. The Board previously remanded this matter in January 2011, January 2014, September 2016, November 2017, July 2019, and December 2020. The Board notes that since the issuance of the December 2020 Board decision, the Veteran has been service connected for right upper extremity carpal tunnel syndrome. See January 2021 Rating Decision. Therefore, this issue is no longer on appeal to the Board and will not be addressed in this decision. A review of the record since the December 2020 remand does not reflect that the developmental actions with respect to the Veteran’s right shoulder strain disability were consistent with the directives of that remand to include the examiner’s responses to the inquiries posed in the remand decision regarding the Veteran’s right shoulder strain disability. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Accordingly, remand is required to obtain an adequate medical opinion that complies with the Board remand directives. Entitlement to service connection for right shoulder strain. The Veteran contends that her current right shoulder disability was either incurred in or caused by service, or alternatively, was caused or aggravated by using a cane for her service-connected right ankle disability. See, e.g., July 2007 Substantive Appeal. The Veteran through her representative asserts that the AOJ erred when it denied service connection for the Veteran’s right shoulder strain disability. See Appellate Brief Received April 2021. VA treatment records indicate that in September 2004 the Veteran was treated for an ankle injury after a door in a VA medical center closed on her ankle. The Veteran is currently service-connected for a right ankle disability caused by that accident under 38 U.S.C. §1151.VA treatment records contain repeated complaints of pain in the Veteran’s right shoulder and right arm. In August 2006, the Veteran reported that she had been treated by cortisone injection in her right shoulder five years prior, which would have been at least two years before the September 2004 accident. The Veteran continued to complain of pain in her right shoulder and right arm in May 2014, November 2018, February 2019, April 2019, August 2019 VA treatment records. VA treatment records also document the Veteran’s complaints that using a cane for her service-connected right ankle disability caused her arm and shoulder to hurt more. See, e.g., March 2019 and April 2019 VA Treatment Records. As noted above, the Veteran is now service connected for right upper extremity carpal tunnel syndrome based on a January 2021 rating decision. Although the Board regrets further delay, it finds that the most recent January 2021 Compensation and Pension (C & P) examination which was performed subsequent to the Board’s December 2020 remand decision is not adequate. Specifically, the January 2021 examiner failed to appropriately offer a clear and responsive opinion and supporting rationale as to whether the Veteran’s right shoulder strain was aggravated by the use of a cane in connection with the Veteran’s service-connected right lower extremity disability. The January 2021 C & P examiner checked a box indicating that the right shoulder strain disability clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. As rationale the examiner stated the following: “AD service dates:09/04/1980-10/01/19809/2/1980 report of medical history and report of medical examination was negative for a shoulder condition. SC was established for a post service right ankle condition due to a September 2004 ankle injury at a VAMC. A nexus is not established.” It is not clear why the examiner indicated that the Veteran’s right shoulder condition clearly and unmistakably existed prior to service as the examiner was not asked to opine on whether the Veteran’s right shoulder strain disability pre-existed service. When asked to opine on whether the Veteran’s service connected right lower extremity aggravated her right shoulder strain condition, the examiner indicated that it did not. Specifically, the examiner stated: “Review of veteran’s c-file shows right shoulder complaints and negative right shoulder x-rays 7/21/2002 and 9/11/2002 prior to the 9/5/2004 injury which lead to the right ankle SC. 9/16/2004 note shows the veteran was ambulating with a cane because the SC right ankle was in an air cast. 1/15/2009 pain management note shows right rotator cuff pathology with a prior history of improvement of symptoms with injections. An MRI of the right shoulder was not seen in the c-file. The rotator cuff condition was diagnosed based on clinical exam findings and supports a rotator cuff tendonitis diagnosis. The rotator cuff tendonitis was present prior to the 9/5/2004 injury and continued after. It was treated with non-surgical options such as various oral pain medications and cortisone injections. The c-file did not show evidence of rotator cuff tear or a right shoulder surgery and the evidence does not support aggravation beyond natural progression of the right shoulder condition by the right lower extremity disability.” The examiner does not offer a clear explanation regarding why he/she found that there was no support of aggravation of the right shoulder condition by the service-connected right lower extremity disability. Moreover, the examiner did not address the impact of the Veteran’s use of a cane for her service-connected right lower extremity disability had on the Veteran’s right shoulder disability. The Board notes that the rationale in the examination report includes several facts, but does not offer a clear medical explanation for the medical conclusions reached. Furthermore, the opinions proffered by the examiner are non-responsive to the remand directives. The Board finds that the examiner should also offer an opinion whether the Veteran’s right shoulder disability is caused or aggravated by the Veteran’s service-connected right upper extremity carpal tunnel syndrome. The Board regrets further delay in this case, which has already been remanded several times. However, the U.S. Court of Veterans Appeals has held that because there are two prongs to a secondary service connection claim—causation and aggravation—in order to be adequate, a medical opinion must provide explanations for both prongs. Atencio v. O’Rourke, 30 Vet. App.74, 91(2018); El-Amin v. Shinseki, 26 Vet. App.136, 140 (2013). Further, an opinion containing only data and conclusions, with no supporting rationale, is not entitled to any weight. See Nieves-Rodriguez v. Peake, 22Vet. App.295, 304 (2008). Accordingly, the Veteran has not been provided an adequate examination. See Barr v. Nicholson, 21Vet. App.303 (2007). The matters are REMANDED for the following action: 1. Provide access to the Veteran’s claims folder to a clinician for the purposes of obtaining a medical opinion on the nature and etiology of the Veteran’s current right shoulder disability, to include possible right shoulder strain, right shoulder impingement, right shoulder bursitis, or pain causing functional impairment of earning capacity. The need for an examination is left to the discretion of the clinician. After reviewing the entirety of this remand, the record, and performing an examination should the clinician deem an examination necessary, the clinician should provide an opinion, with supporting rationale, as 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 CAUSED by use of a cane in connection with the Veteran’s service-connected right lower extremity disability? (b) If not, is it at least as likely as not that the Veteran’s current right shoulder disability was AGGRAVATED by use of a cane in connection with the Veteran’s service-connected right lower extremity disability? If the Veteran’s right shoulder disability is aggravated by the use of a cane in connection with the Veteran’s service-connected right lower extremity disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of the right shoulder disability prior to such use of a cane. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of her observable symptoms over time. (c) Is it at least as likely as not (a 50 percent probability or higher) that the Veteran’s right shoulder strain disability was CAUSED by the Veteran’s service-connected connected right upper extremity carpal tunnel syndrome disability? (d) Is it at least as likely as not (a 50 percent probability or higher) that the Veteran’s right shoulder strain disability was AGGRAVATED by the Veteran’s service-connected connected right upper extremity carpal tunnel syndrome disability? A complete rationale must be provided for each opinion given. The examiner must consider the Veteran’s lay statements. If the examiner is unable to provide a medical opinion, then he/she should must explain in detail why that is the case and provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, 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.