Citation Nr: 22010169 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 09-48 344 DATE: February 22, 2022 REMANDED Entitlement to service connection for right shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1976 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In December 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In a July 2018 decision, the Board denied entitlement to service connection for a right shoulder disability because the evidence was against a finding that the Veteran's right shoulder disability was due to his active-duty service or secondary to his service-connected left shoulder disability. The Veteran timely filed an appeal to the Court of Appeals for Veterans Claims (CAVC). CAVC found that the January 2018 VA examination did not adequately consider all theories of entitlement including the Veteran's statement that he used his right shoulder more due to the limitation of his service-connected left shoulder. The Veteran also stated that the VA examination provided a medical opinion based on inaccurate premise. More specifically, the January 2018 examiner opined that there has been no mention [in the Veteran's] records of any such causal relationship between the right and left shoulders. However, Dr. Crockett's November 2010 and December 2015 letters did allude to a relationship between appellant's service-connected left shoulder disability and his right shoulder disability. In addition, the VA physician also remarked that the Veteran's right shoulder was repaired in 2011 and "[t]here has been no active and ongoing treatment or evaluation of [right] shoulder condition since." However, March 2012 and June 2012 treatment records reflect that the Veteran underwent occupational therapy on his right shoulder several times following his 2011 rotator cuff repair procedure. Further, treatment records from 2013 to 2017 document the Veteran's complaints of ongoing pain and limitation of motion in both the right and left shoulders. Considering this evidence, CAVC found that the VA physician's reports contained several inaccuracies. Therefore, remand was required to provide the Veteran an adequate VA examination. The Board remanded the claim in March 2021. The Board asked the examiner to (1) acknowledge findings of previous examinations; (2) determine whether the Veteran's right shoulder disability was secondary to any service-connected disabilities or event in service; and (3) opine if the right shoulder disability was aggravated by the left shoulder disability. The RO obtained a September 2021 VA examination and medical opinion. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner wrote that the Veteran's DD-214 showed service in the US Army from May 1976 to May 1996. The September 1975 entrance exam at New Orleans annotated no issues. Separation exam dated October 1995 annotates no issues related to the current claim. The Veteran claims a right shoulder insult secondary to left shoulder injury, for which there seems to be no STR documentation. Treatment record of the left shoulder in 2015 reports within normal limits; hence, there can be no secondary complication to a normal condition. This medical opinion did not address all the directives in the March 2021 remand. Therefore, the RO sent November 2021 exam request reiterating the directives of the March 2021 remand. A November 2021 medical opinion was obtained. However, the addendum did not adequately comply with the Board's request and does not address the directives included in the March 2021 remand. More specifically, the examiner was asked to determine if the Veteran's right shoulder disability was secondary to his service-connected disabilities. The examiner's response was "If the VA person of inquiry had ANY medical knowledge and/or experience, s/he would NOT have even mentioned the SC disabilities, excepting possibly the left shoulder impingement syndrome. NO other disability is even close to an existing relationship w/the right shoulder!!" The examiner did not make his own objective finding about the relationship between the Veteran's right shoulder and left shoulder. Instead, he commented on the statements of another. In addition, the examiner was asked to determine if the Veteran's right shoulder disability was at least as likely as not (50 percent or greater probability) proximately due to or the result of his service-connected disabilities. The examiner's response was "one would be hard pressed (very); to consider a relationship exists to any of the listed SC disabilities (much less causality), w/ the exception of possibly the compensatory use/abuse to dominant shoulder secondary to left shoulder disability. With that being said, DD-214 reports dos as 1976-1996 and XR exam of left shoulder in 2015 reports as NORMAL, and now VA is "prompting" an opinion change from nay to yeah, which is probably NOT appropo!" The examiner's statements are contradictory to his previous statement. He stated that there was no other disability even close to an existing relationship with the right shoulder. Then the examiner stated that there was a possibility of compensatory use to dominant shoulder secondary to left shoulder disability. The Board also notes that, with respect to the question of secondary causation or aggravation, the examiner is possibly under the mistaken impression that the secondary causation or aggravation is required to have occurred during service, noting that "The veteran claims a right shoulder insult secondary to left shoulder injury, for which there seem to be no STR documentation." See May 18, 2021 DBQ opinion. The Board notes, however, that secondary causation or aggravation occurring many years after service is still sufficient to provide a basis for granting service connection. In addition, the examiner indicates in essence that there can be no secondary service connection with the left shoulder causing right shoulder disorder, because the left shoulder is normal and "there can be no secondary complication to a normal condition." See May 18, 2021 DBQ opinion. However, the VA has already recognized that the Veteran has a left shoulder disorder by granting service connection for left shoulder impingement rated as 20 percent disabling. In fact, the same examiner has previously rendered diagnoses for the left shoulder. Accordingly, the opinion is not based on an accurate factual background. An exam is inadequate if does not express the right degree of certainty, does not provide a rationale, or is conclusory. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Remand is required to obtain an objective medical opinion that properly addresses all of the remand directives. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from a different examiner. A complete copy of the claims file including a copy of this remand must be provided for the examiner's review. The examiner is asked to review the claims file in its entirety and indicate in the record that he or she has done so. The need for an in-person examination is left to the discretion of the assigned examiner. (a.) The examiner is asked to acknowledge and provide comments about the findings of the previous VA examinations and private medical opinions listed in the claims file (b.) The examiner is asked to acknowledge and provide comments about the Veteran's statements concerning his right shoulder being overused due to the limitation of his left shoulder Only after doing the aforementioned, the examiner is asked to render an opinion: Whether the Veteran's right shoulder disability is related to his military service and/or secondary to (caused or aggravated by) his service-connected disabilities. In particular, the examiner must specifically address whether the right shoulder disability is caused or aggravated by abnormal wear and tear caused by his service-connected left shoulder injury due to compensating for his left shoulder pain by relying more on the right shoulder. If an opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After ensuring compliance with this remand, readjudicate the claim on appeal. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.