Citation Nr: 21042498 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 14-26 238 DATE: July 13, 2021 REMANDED Entitlement to service connection for myositis is remanded. Entitlement to service connection for a kidney disorder (claimed as pyelonephritis) is remanded. Entitlement to service connection for a left shoulder disorder (claimed as left shoulder pain) is remanded. Entitlement to service connection for a right shoulder disorder (claimed as right shoulder pain) is remanded. Entitlement to service connection for a low back disorder (claimed as low back pain) is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The appellant served in the Army National Guard of Tennessee and the Army Reserve, with verified periods of active duty for training (ACDUTRA) from October 25, 1983 to March 28, 1984; from August 2, 1985 to August 18, 1985; from June 9, 1986 to May 25, 1986; from December 13, 1986 to December 14, 1986; and from May 1, 1987 to May 17, 1987. In an October 2012 rating decision, the RO, in relevant part, first denied service connection for a low back disability, myositis, pyelonephritis, tinnitus, a right shoulder disability and a left shoulder disability. Following a request for reconsideration, in a January 2013 rating decision, the RO, in relevant part, confirmed and continued the previous denials of service connection for a low back disability, myositis, pyelonephritis, tinnitus, a right shoulder disability and a left shoulder disability. Following another request for reconsideration, in an April 2013 rating decision, the RO again confirmed and continued the previous denials of service connection for a low back disability, myositis, pyelonephritis, tinnitus, a right shoulder disability and a left shoulder disability. In May 2013, the appellant filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2014, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) the following week. In May 2018, the appellant testified in a videoconference hearing before a Veterans Law Judge who is no longer employed at the Board. In September 2018, the Board remanded the claims on appeal for additional development. The AOJ, however, did not substantially comply with the remand directives. In November 2020, the Board again remanded the claims on appeal for additional development, to include verifying all periods of active duty, ACDUTRA, and INACDUTRA. The Board also directed that the AOJ arrange for the appellant to undergo any VA examinations or obtain any medical opinions, as appropriate. Following the November 2020 Remand, the AOJ associated the appellant's Army National Guard Retirement Credits Record and Army National Guard Retirement Points History Statement with the claims file, which noted periods of ACDUTRA or full-time training duty. No further examinations or opinions, however, were associated with the record. As such, the Board must remand the matter to determine the etiology of the appellant's claimed conditions. 1. Entitlement to service connection for myositis is remanded. 2. Entitlement to service connection for a kidney disorder, to include pyelonephritis is remanded. 3. Entitlement to service connection for a left shoulder disorder is remanded. 4. Entitlement to service connection for a right shoulder disorder is remanded. 5. Entitlement to service connection for low back pain is remanded. 6. Entitlement to service connection for tinnitus is remanded. Further development is necessary before the Board can adjudicate the appellant's claims. The appellant contends that service connection is warranted for myositis; a kidney disorder; a left and right shoulder disorder; a low back disorder; and tinnitus. In a December 2020 Statement in Support of Claim, the appellant reported that all of the medical conditions that she suffers from today happened during either ACDUTRA, annual training, and/or drill weekends. The appellant's service treatment records reveal notations of myositis (August 8, 1984); tender shoulder muscles (August 8, 1984); localized paralumbar pain (May 19, 1986); frequent urination and a resolving urinary tract infection (May 19, 1986); pyelonephritis/urinary tract infection (August 14, 1985 and August 17, 1985); a female infection (May 19, 1986); constant left flank pain and urinary tract infection, probable pyelonephritis (August 14, 1985); and acute pyelonephritis (August 14, 1985). In a separate March 2013 private treatment note, Dr. G.E. stated that the appellant's symptoms of myositis; bilateral shoulder pain; low back pain; hematuria/urinary tract infection/pyelonephritis dates back since the years of her military service. The physician further opined that it was at least as likely as not that her current conditions are linked to the trauma that she suffered during her service tenure. The physician reasoned that a review of the appellant's medical records from 1982 to 2002 reveal those facts. To date, the appellant has not been afforded VA examinations for her claimed myositis, pyelonephritis, and bilateral shoulder disorders. Given that there were complaints, diagnoses, and/or treatment for these claimed conditions and given the favorable private opinions of record, respective VA examinations are necessary to determine the nature and etiology of the claimed conditions. As to the March 2013 private DBQ to assess a low back disorder, the clinician (Dr. E.O.) noted a diagnosis of degenerative disc disease and radiculopathy. The clinician opined, following a review of the appellant's medical records and service medical records, that it was at least as likely as not that the appellant's bilateral shoulder pain; pyelonephritis; low back pain; tinnitus; and myositis were linked to her time in service. The physician rationed that there was no evidence to show or reason to expect that she has a new or different cause for her medical problems. The Board finds that this opinion is conclusory and lacks adequate supporting rationale. As to the VA examinations to assess tinnitus, the Board finds that such VA examinations, dated August 2012, September 2012, and October 2012, are inadequate. Notably, in the August 2012 Hearing Loss and Tinnitus DBQ, the examiner noted that a medical opinion regarding the etiology of the appellant's tinnitus could not be provided without resorting to speculation. In support of the opinion, the examiner noted that the appellant's results were too inconsistent, so the degree of hearing loss was unreliable, without further explanation that specifically discussed the Veteran's symptoms of tinnitus. Additionally, the Board finds the rationale to be inadequate as an etiological opinion distinct to tinnitus (rather than hearing loss) was not provided. The matters are REMANDED for the following action: 1. Schedule the appellant for VA examinations with appropriate clinicians to determine the etiology of the appellant's claimed disorders. **In doing so, provide a precise listing of the appellant's specific periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA) to each examiner. Please note that a retirement points summary will not suffice. Each examiner must review the entire claims file, including past Remands and the current Remand. Any indicated studies should be performed. a) MYOSITIS: The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the appellant has myositis that was incurred in service, or is otherwise related to her active duty service; OR that the disability was caused as a result of a period of ACDUTRA or INACDUTRA. In doing so, consider the post-service notations of chest pain (January 20, 2016). b) KIDNEYS: The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the appellant has a kidney disorder (to include pyelonephritis) that was incurred in service, or is otherwise related to her active duty service; OR that the disability was caused as a result of a period of ACDUTRA or INACDUTRA. In doing so, consider the March 8, 2019 private treatment record that shows that the appellant was under physician care for kidney disease. c) SHOULDERS: The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the appellant has a left or right shoulder disorder that was incurred in service, or is otherwise related to her active duty service; OR that the disability was caused as a result of a period of ACDUTRA or INACDUTRA. d) LOW BACK: The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the appellant has a low back disorder that was incurred in service, or is otherwise related to her active duty service; OR that the disability was caused as a result of a period of ACDUTRA or INACDUTRA. In doing so, consider the post-service diagnoses of treatment for of lumbago, levoscoliosis, and lumbar disc disease and facet joint osteoarthritis (August 15, 2012), as well as the March 2013 private DBQ and opinions. e) TINNITUS: The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the appellant has tinnitus that was incurred in service, or is otherwise related to her active duty service; OR that the disability was caused as a result of a period of ACDUTRA or INACDUTRA. **In rendering each of the requested opinions above, the examiner is advised of the following: i. that the appellant is competent to report in-service injuries, symptoms, and history. Such reports must be specifically acknowledged and considered in formulating any opinions. ii. that a lack of documented treatment in service cannot serve as the sole basis for a negative finding, particularly where the service treatment records are unavailable. All opinions should be supported by a clear and detailed rationale. iii. that evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.