Citation Nr: 21028631 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-27 472 DATE: May 11, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a left hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1982 to December 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a Travel Board hearing before a Veterans Law Judge. A transcript of that hearing has been associated with the record. A September 2019 Board decision denied service connection for the Veteran's lumbar spine, left shoulder, and left hip disabilities. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision insofar as it denied service connection for the Veteran's lumbar spine, left shoulder, and left hip disabilities, and remanding the matter for readjudication. In November 2020, the Board wrote the Veteran to inform him that the Veterans Law Judge who conducted the hearing in March 2019 was no longer employed by the Board. The Veteran was offered the opportunity to testify at another Board hearing. He was notified that if he did not respond within 30 days, the Board would assume that he did not wish to have another hearing. To date, no response to the November 2020 has been received. Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims, and to comply with the terms of the November 2020 JMPR. 1. Entitlement to service connection for a lumbar spine disability is remanded. 2. Entitlement to service connection for a left shoulder disability is remanded. 3. Entitlement to service connection for a left hip disability is remanded. In the November 2020 JMPR filed with the Court, the parties agreed that the September 2019 Board decision did not provide an adequate statement of reasons and bases for its conclusion that service connection was not warranted for the Veteran's lumbar spine, left shoulder, and left hip disabilities. Specifically, the JMPR noted that the Board failed to discuss any evidence of record after the November 2014 VA examinations, to include the Veteran's March 2019 Board hearing testimony during which he testified that a VA physician Dr. S. told him that his left hip and low back disabilities were due to wearing a knee brace and favoring his right side for more than 25 years, which compressed the lumbar spine and left hip socket. Additionally, the November 2020 JMPR found that the medical evidence addressed in the September 2019 Board decision was inadequate. Specifically, a November 2014 VA examiner was asked to opine as to whether the Veteran's lumbar spine disability is due to, a result of, or aggravated by his service-connected right knee degenerative joint disease (DJD); whether his left shoulder disability is due to, a result of, or aggravated by his service connected left bicep tendon rupture; and whether his left hip disability condition is due to, a result of, or aggravated by his service-connected right knee DJD. The November 2014 examiner provided negative nexus opinions and reasoned that the currently available medical literature did not support causation or aggravation and concluded that degenerative joint disease is a natural and normal wear and tear process of aging. Importantly, the examiner did not discuss the Veteran's medical history, identify the medical literature she based her opinion, or provide a rationale for her conclusion. Therefore, the parties to the JMPR concluded that the November 2014 VA opinions are inadequate. Based on the foregoing, a remand is warranted to obtain an addendum VA opinion to help determine the nature and etiology of the Veteran's lumbar spine, left shoulder, and left hip disabilities. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal, to include an authorization to obtain records from Dr. S., who was identified by the Veteran during his March 2019 Board hearing. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran, and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange for the claims file to be reviewed by the VA examiner who prepared the November 2014 VA spine, shoulder, and hip conditions examination reports (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing addendum opinions. If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner is requested to provide the following opinions: (a) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's lumbar spine disability had its onset in, or is otherwise attributable to, his service? (b) If it is the examiner's opinion that it is unlikely that the Veteran's lumbar spine disability was incurred in service or is otherwise related to service, is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's lumbar spine disability has been (a) caused or (b) aggravated (i.e., worsened beyond normal progression) by his service-connected right knee DJD? (c) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's left shoulder disability had its onset in, or is otherwise attributable to, his service? (d) If it is the examiner's opinion that it is unlikely that the Veteran's left shoulder disability was incurred in service or is otherwise related to service, is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's left shoulder disability has been (a) caused or (b) aggravated (i.e., worsened beyond normal progression) by his service-connected left bicep tendon rupture? (e) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's left hip disability had its onset in, or is otherwise attributable to, his service? (f) If it is the examiner's opinion that it is unlikely that the Veteran's left hip disability was incurred in service or is otherwise related to service, is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's left hip disability has been (a) caused or (b) aggravated (i.e., worsened beyond normal progression) by his service-connected right knee DJD? The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A clear rationale for all requested opinions shall be provided. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.