Citation Nr: 21042389 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-02 997 DATE: July 12, 2021 REMANDED Entitlement to service connection for mild intermittent right shoulder joint and right trapezius strain is remanded. Entitlement to service connection for left shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from March 2005 to March 2009. These matters come to the Board of Veterans' Appeals (Board) on appeal from July 2014 and February 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously remanded by the Board in September 2018, June 2020, and March 2021 for further development. These matters have since been returned to the Board for appellate consideration. 1. Entitlement to service connection for mild intermittent right shoulder joint and right trapezius strain is remanded. 2. Entitlement to service connection for left shoulder disability is remanded. When these matters were last before the Board in March 2021, the Board found that the opinions provided by the September 2020 VA examiner were inadequate because the rationales against service connection were based solely on the lack of treatment and/or complaints of shoulder pain during active service. Additionally, the Board noted that the rationales did not discuss the Veteran's lay statements that his should pain began during service, regardless of whether he sought treatment for it. The remand directives instructed the examiner to directly address the Veteran's lay statements attesting that his bilateral shoulder pain had a gradual onset during service, and instructed that the disassociation cannot be solely predicated on him not having received treatment for or complained of shoulder pain during his time in service. The remand directives further instructed that if the examiner believes it is significant that the Veteran was not treated for these shoulder disabilities during his service, he or she must provide an explanation of why it is significant. Per the directives of the Board's most recent prior remand, an addendum medical opinion was obtained in April 2021. The April 2021 examiner noted that he had reviewed the conflicting medical evidence and opined that as there was no evidence of a chronic shoulder condition at separation from service, and as such, it was unlikely that a chronic shoulder condition would have been unnoted or unreported at separation from service. As the April 2021 addendum medical opinion failed to comply with the March 2021 Board remand instructions, a clarification was requested from the April 2021 examiner. In May 2021, the April 2021 examiner provided a clarification to his addendum medical opinion. The examiner explained that if the Veteran had a chronic shoulder condition at separation from service, it would have been noted during the separation from service examination because separation examinations are "notably thorough and include a history, physical and veteran-answered [report of medical history]." The examiner stated that the Veteran's complaints that his shoulder pain had a gradual onset during service were not substantiated and that there was clear medical evidence to the contrary, citing the separation from service examination which was silent for any complaints of shoulder pain. He opined that it was less likely than not that the Veteran's current left and right shoulder disabilities had their nexus in service or that his shoulder pain had a gradual onset during service from wearing flak jackets and rucksacks. The examiner noted that although the absence of service treatment records and post-service treatment records until 2014 were not sufficient to deny service connection in themselves, they were pertinent in this situation. He explained that there was no reason that the Veteran would not have reported an ongoing shoulder condition during the separation examination because the purpose of separation examinations is to provide care for a current condition or to assist the Veteran with a claim for disability. The examiner then noted that the Veteran had been separated from service for six years before he first sought post-service treatment for his shoulder conditions. The examiner opined that it was more likely than not that the Veteran's bilateral shoulder conditions were new conditions that had arisen due to either an acute injury or chronic overuse. The examiner further stated that because the Veteran's most recent occupation history included police work, the physical training associated with police work was the most likely source of his bilateral shoulder pain. The examiner concluded that the medical evidence of record does not support the Veteran's claim of gradual onset of bilateral shoulder pain in service due to specified activities, including wearing flak jackets and rucksacks. The Board finds that the rationale provided by the May 2021 VA examiner to support his negative nexus opinion is inadequate. Although the VA examiner acknowledged the Veteran's lay statement that while he experienced bilateral shoulder pain during service, he did not report such pain, the examiner believed that if the Veteran had a chronic shoulder disability at the time of his separation from service that it would have been discovered during his separation examination because separation examinations are very thorough. This rationale does not explain how shoulder pain would have been discovered during the separation examination if the Veteran did not report it during the examination and if there were no other evidence of record that suggested that the Veteran had bilateral shoulder pain. Additionally, after noting that the Veteran did not seek treatment for his claimed bilateral shoulder pain until 2014 (which is incorrect, post-service treatment records show the Veteran first complained of bilateral shoulder pain which he related to military service in May 2013 See CAPRI, received October 2016), the examiner concluded that the Veteran's current shoulder conditions must be new and opined that they were likely related to post-service activities and/or police work physical training. The examiner did not provide an explanation to support this conclusion. Therefore, the rationale of the negative nexus opinion is inadequate for adjudicative purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board must ensure compliance with the terms of its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders). In the present case, the Board finds that there has not been substantial compliance with the directives of the March 2021 remand. Therefore, another remand is required in order to procure a medical opinion supported by a sound rationale before the Board can render a fully-informed decision on the merits of the Veteran's appeal. The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to a qualified clinician for an addendum opinion regarding the etiology of the Veteran's bilateral shoulder disabilities. All pertinent evidence of record must be made available to and reviewed the examiner. If the examiner determines that an examination is necessary, one should be scheduled. After reviewing the record, the examiner must provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder disability is causally related to his military service? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left shoulder disability is causally related to his military service? In providing this opinion, the examiner should consider and address the lay statements made by the Veteran concerning the onset and continuity of his symptomatology, specifically that wearing flak jackets and rucksacks during service gradually resulted in shoulder pain, and that he experienced this pain during service, but did not report it or seek treatment for it. If the examiner believes it is significant that the Veteran was not treated for these shoulder disabilities during his military service, the examiner must provide an explanation as to why it is significant. It should be noted that the Veteran is competent to attest to factual matters of which he had or had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (Continued on the next page) A full rationale must be provided for any opinion offered and a thorough explanation would be helpful for the Board. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.