Citation Nr: 21029210 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-39 067 DATE: May 12, 2021 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a stomach disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran has multiple periods of active service, including periods dated from January 1990 to January 1994, May 1995 to September 1995, October 1995 to April 1996, February 1997 to August 1997, February 1998 to September 2000, and May 2002 to July 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2011 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2019. A transcript is of record. This matter was remanded by the Board in September 2019. As discussed below, unfortunately another remand is necessary. 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to service connection for a stomach disability is remanded. 3. Entitlement to service connection for a cervical spine disability is remanded. 4. Entitlement to service connection for a lumbar spine disability is remanded. The Board remanded the Veteran's claims in September 2019 to, in part, obtain VA examinations and medical opinions concerning the nature and etiology of his claimed conditions. In particular, the examiner providing the medical opinion was directed to consider and discuss the Veteran's lay assertions as to his continued symptoms of each of his claimed conditions, including his right shoulder disability, stomach disability, cervical spine disability, and lumbar spine disability from the time of service to the present. Indeed, the Board included quotes from the Veteran's testimony at his March 2019 Board remand detailing his continuous symptomatology. The Board also directed the examiner to opine on specific diseases related to the Veteran's claims, for example "The examiner must opine whether the Veteran's cervical spine disability, including, but not limited to, degenerative arthritis of the spine, spinal fusion, cervical spondylosis, and cervical arthrodesis..." See September 2019 Board Remand. The Board provided a non-exhaustive list of specific diseases in its remand directives for each of the Veteran's 4 claims. A VA examination was obtained in February 2020, where the examiner provided a generic and nearly identical response to the Board remand directive to discuss the Veteran's lay statements for each of his conditions. As highlighted by the Veteran's representative, the examiner's response was nearly identical for each condition, as follows " To the extent that the Veteran asserts his personal beliefs that there exists a medical relationship between military service and his [_____] condition, the etiologies of this condition is a complex medical question not capable of lay observation, and neither the Veteran has not demonstrated that he has the knowledge or skill to assess such a complex medical condition, and therefore, is not competent to provide an opinion as to the etiology of the [_________] condition or symptoms." See March 2021 Appellate Brief, quoting February 2020 VA examination. The examiner did not discuss the Veteran's lay statements heard at his March 2019 Board Hearing, where he detailed the symptoms he experienced beginning in service to the present. Furthermore, the February 2020 VA examiner did not discuss the specific conditions the Board directed him to discuss in its remand, and instead offered broad opinions, such as " the majority of the evidence DOES NOT suggest a nexus link between the veterans current cervical spine condition to military service..." and "the majority of the evidence DOES NOT suggest a nexus link between the veterans current condition to military service" in response to his stomach condition. The Board finds the February 2020 VA medical opinion inadequate, as it is not responsive to the directives posed by the Board in the September 2019 remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); D'Aries, 22 Vet. App. at 104 (holding that an examination must be based on consideration of the claimant's medical history and must describe the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Based on the above, the Board finds that the medical opinions did not substantially comply with the September 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). Therefore, the Board finds that new VA medical opinions are necessary to fully address the nature and etiology of the Veteran's claims for service connection. The matters are REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records. 2. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran's right shoulder disability. (a) The examiner must opine whether the Veteran's right shoulder disability, including, but not limited to, mild right acromioclavicular osteoarthritis, is at least as likely as not related to an in-service injury, event, or disease, considering his September 1994 injury resulting in right pectinal major strain, his March 1995 stiffness in the right shoulder and chest, his July 1998 soreness and aching pain to the right aspect of the muscle that radiates to the right shoulder blade, diagnosed as bursitis, and his May 2000 complaints of neck and shoulder stiffness after a motor vehicle accident, diagnosed as muscle spasm, as well as his post-service 2006 railway injury and 2009 motor vehicle accident. The examiner must consider the Veteran's lay statements that he injured his right shoulder during service and has had continued right shoulder symptoms after the injury to the present time, especially in the context of any discussion that the Veteran's in-service symptoms resolved. If there is any medical reason to accept or reject the proposition that the Veteran's reported in-service event and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner must discuss the nature of the Veteran's right shoulder disability prior to and after the 2006 railway injury and before and after the 2009 motor vehicle accident and provide a complete rationale for any opinion etiologically linking the Veteran's current right shoulder disability with the post-service injuries as opposed to any in-service right shoulder complaints, diagnoses, and continued symptoms, present prior to the 2006 railway injury and the 2009 motor vehicle accident. (b) The examiner must opine whether the Veteran's mild right acromioclavicular osteoarthritis is at least as likely as not: (1) manifest to a compensable degree within one year of separation from service in July 2002; or (2) was noted during service with continuity of the same symptomatology since service, considering his in-service complaints and diagnoses, his post-service 2006 railway injury and 2009 motor vehicle accident, as well as his lay statements that he injured his right shoulder during service and has had continued right shoulder symptoms after the injury to the present time. 3. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran's stomach disability. (a) The examiner must diagnose all stomach disabilities over the course of the appeal, including, but not limited to, diverticulitis of the transverse sigmoid colon, h. pylori gastritis, or residuals thereof, hematochezia, and benign intestinal metaplasia. (b) The examiner must opine as to whether any stomach disabilities, including, but not limited to, diverticulitis of the transverse sigmoid colon, h. pylori gastritis, or residuals thereof, hematochezia, and benign intestinal metaplasia, is at least as likely as not related to an in-service injury, event, or disease, considering his August 1990 complaint of epigastric cramps for two weeks and diagnosis of gastroenteritis and his March 1991 complaint of back pain and stomach cramps and diagnosis of mild back pain and resolving stomach cramps. The examiner must consider the Veteran's lay statements that he incurred stomach symptoms during service and has had continued right abdominal pain, unabated, especially in the context of any discussion that the Veteran's in-service symptoms resolved. If there is any medical reason to accept or reject the proposition that the Veteran's reported in-service event and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran's cervical and lumbar spine disabilities. (a) The examiner must opine whether the Veteran's cervical spine disability, including, but not limited to, degenerative arthritis of the spine, spinal fusion, cervical spondylosis, cervical spondylolysis, and cervical arthrodesis, is at least as likely as not related to an in-service injury, event, or disease, considering his June 1993 report of neck and back injuries, with stiffness in the back and neck, his May 2000 complaint of neck and shoulder stiffness after a motor vehicle accident and diagnosis of muscle spasm, as well as his post-service 2006 railway injury requiring surgical treatment and 2009 motor vehicle accident wherein he injured his right upper body and reinjured his neck. The examiner must consider the Veteran's lay statements that he injured his cervical spine during service and has had continued cervical spine symptoms after the injury to the present time, especially in the context of any discussion that the Veteran's in-service symptoms resolved. If there is any medical reason to accept or reject the proposition that the Veteran's reported in-service event and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner must discuss the nature of the Veteran's cervical spine disability prior to and after the 2006 railway injury and the 2009 motor vehicle accident and provide a complete rationale for any opinion etiologically linking the Veteran's current cervical spine disability with such, as opposed to any in-service cervical spine complaints, diagnoses, and continued symptoms, present prior to the 2006 railway injury and 2009 motor vehicle accident. (b) The examiner must opine whether the cervical spine degenerative arthritis is at least as likely as not: (1) manifest to a compensable degree within one year of separation from service in July 2002; or (2) was noted during service with continuity of the same symptomatology since service, considering his in-service complaints and diagnoses, his post-service 2006 railway injury requiring surgical treatment and 2009 motor vehicle accident wherein he injured his right upper body and reinjured his neck, as well as his lay statements that he injured his cervical spine during service and has had continued cervical spine symptoms after the injury to the present time. (c) The examiner must opine whether the Veteran's lumbar spine disability, including, but not limited to, degenerative arthritis of the spine, lumbar spondylosis, and lumbar arthrodesis, is at least as likely as not related to an in-service injury, event, or disease, considering his June 1993 report of neck and back injuries, with stiffness in the back and neck, his March 1991 complaint of back pain and stomach cramps and diagnosis of mild back pain and resolving stomach cramps, his May 2000 complaint of neck and shoulder stiffness after a motor vehicle accident and diagnosis of muscle spam, as well as his post-service 2006 railway injury requiring surgical treatment and 2009 motor vehicle accident wherein he injured his right upper body and reinjured his neck. The examiner must consider the Veteran's lay statements that he injured his lumbar spine during service and has had continued lumbar spine symptoms after the injury to the present time, especially in the context of any discussion that the Veteran's in-service symptoms resolved. If there is any medical reason to accept or reject the proposition that the Veteran's reported in-service event and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner must discuss the nature of the Veteran's lumbar spine disability prior to and after the 2006 railway injury and the 2009 motor vehicle accident and provide a complete rationale for any opinion etiologically linking the Veteran's current lumbar spine disability with such, as opposed to any in-service lumbar spine complaints, diagnoses, and continued symptoms, present prior to the 2006 railway injury and 2009 motor vehicle accident. (d) The examiner must opine whether the lumbar spine degenerative arthritis is at least as likely as not: (1) manifest to a compensable degree within one year of separation from service in July 2002; or (2) was noted during service with continuity of the same symptomatology since service, considering his in-service complaints and diagnoses, his post-service 2006 railway injury requiring surgical treatment and 2009 motor vehicle accident wherein he injured his right upper body and reinjured his neck, as well as his lay statements that he injured his lumbar spine during service and has had continued lumbar spine symptoms after the injury to the present time. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Mohammad 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.