Citation Nr: 21041856 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-01 690 DATE: July 10, 2021 REMANDED Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for a right elbow condition is remanded. Entitlement to service connection for a respiratory condition is remanded. Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for left leg sciatica is remanded. Entitlement to service connection for right leg sciatica is remanded. Entitlement to service connection for depression as secondary to service-connected bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1975 to June 1977. The service connection claims for a right shoulder, right elbow and respiratory conditions were previously before the Board in December 2018, at which time the issues were remanded for additional development. For the reasons that follow, there has not been substantial compliance with the remand directives, and another remand is needed before the Board can adjudicate these issues. Stegall v. West, 11 Vet. App. 268, 271 (1998). In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. 1. Entitlement to service connection for a right shoulder condition is remanded. 2. Entitlement to service connection for a right elbow condition is remanded. The Veteran contends that he injured his right shoulder and elbow in service while working as a tank crewman. He testified at his Board hearing that he has experienced right shoulder and elbow symptoms since active service. He was afforded VA examinations in September 2019, where he was diagnosed with bilateral shoulder strain, right shoulder impingement syndrome, right rotator cuff tendonitis, and right elbow strain. However, the examiner's respective negative nexus opinions are inadequate to adjudicate the service connection claims because both opinions which are written nearly identically are based on the absence of medical records showing the onset of any of the diagnosed conditions in service. An opinion based on the absence of treatment records without consideration of a Veteran's competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Remand is needed to obtain more thoroughly reasoned addendum opinions that take the Veteran's lay statements into consideration. 3. Entitlement to service connection for a respiratory condition is remanded. The Veteran contends that he suffers from respiratory conditions are related to inhaling exhaust fumes in service while working as a tank crewman. He underwent a VA examination in September 2019 where he was diagnosed with chronic obstructive pulmonary disease (COPD) and Stage 4 non-small-cell lung cancer. However, the examiner's opinion fails to specifically address the Veteran's contentions that he developed the conditions as a result of in-service exposure to exhaust fumes and instead concluded that the Veteran's history of smoking cigarettes was likely responsible for developing the conditions. Remand is needed to obtain a more thoroughly reasoned addendum opinion. 4. Entitlement to service connection for a lower back condition is remanded. 5. Entitlement to service connection for left leg sciatica is remanded. 6. Entitlement to service connection for right leg sciatica is remanded. The Veteran contends that he developed back problems and bilateral lower extremity sciatica as a result of his in-service work duties as a tank crewman, which involved getting into and jumping off of tanks. To date, he has not been afforded a VA examination with opinion on these issues. VA treatment records include May 2018 MRI results that showed the Veteran suffered from a right subarticular disc protrusion at L5-S1 with right nerve root compromise. An August 2017 VA treatment record noted an assessment of right-sided sciatica and muscle spasm of the back. Considering the Veteran's credible testimony and the medical evidence of record, he should be afforded a VA examination with opinion on these issues. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 7. Entitlement to service connection for depression as secondary to service-connected bilateral hearing loss is remanded. The Veteran contends that he developed depression as a result of his service-connected bilateral hearing loss. He underwent a VA examination in August 2017 where he was diagnosed with major depressive disorder. However, the VA examiner's negative nexus opinion is inadequate to adjudicate the Veteran's claim. The aggravation prong of secondary service connection theory of entitlement was not addressed. Further, the examiner stated without explanation that it would be speculative to attribute the cause of the Veteran's diagnosed major depressive disorder to his service-connected tinnitus and hearing loss. Remand is needed to obtain a more thoroughly reasoned and complete addendum opinion. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate VA examiner to help determine the likely etiology of the claimed right shoulder and right elbow conditions. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After review of the record, the examiner is asked to respond to the following: (a) Identify all currently diagnosed right shoulder and right elbow disabilities. (b) For each currently diagnosed disability, opine whether it is at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to it. Specifically explain why current findings are/are not related to service. Please note: lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. A complete rationale should be provided for any opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. 2. Obtain an addendum medical opinion from an appropriate VA examiner to help determine the likely etiology of the claimed respiratory condition. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After review of the record, the examiner is asked to respond to the following: (a) Identify all currently diagnosed respiratory disabilities, to include COPD and lung cancer. (b) For each currently diagnosed disability, opine whether it is at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to the Veteran's reports of having been exposed to exhaust fumes while working as a tank crewman in service. A complete rationale should be provided for any opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed low back and bilateral lower extremity sciatica disabilities. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The examiner should then answer the following questions: (a.) Please identify all diagnoses related to the Veteran's claimed back and bilateral lower extremity sciatica disabilities. (b.) Is it as likely as not (50 percent or greater probability) that any diagnosed condition identified above either had its onset in or is otherwise related to the Veteran's active duty service? A complete rationale should be provided for any opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's diagnosed major depressive disorder at least as likely as not was caused or aggravated by his service-connected bilateral hearing loss or tinnitus. Copies of all pertinent records must be made available to the examiner for review. A complete rationale should be provided for any opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.