Citation Nr: 22010799 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 15-45 769 DATE: February 24, 2022 REMANDED Entitlement to service connection for a left shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1967 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018 and March 2021, the Board remanded this matter for additional development. Entitlement to service connection for a left shoulder disability is remanded. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran's service treatment records (STR) reflect a January 1969 diagnosis of shoulder strain; while written somewhat illegibly, it appears to reference the left shoulder. During an April 2014 VA examination, examiner V.K. performed an imaging study on the Veteran's shoulder, which documented degenerative or traumatic arthritis. Despite this documentation, the examiner stated that the Veteran "has not had any diagnosed shoulder condition" since the 1969 shoulder strain. Based on that premise, Dr. K. opined that the Veteran's claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The September 2018 Board decision remanded the issue of entitlement to service connection for the Veteran's left shoulder disability for a new VA examination. The Board found the April 2014 examination inadequate because the examiner's opinion was based on an inaccurate factual premise and was contradicted by her own objective findings. Pursuant to the September 2018 Board remand directives, the April 2014 VA examiner provided a new medical opinion in December 2020. However, the Board in the March 2020 remand found that this opinion was inadequate because the examiner failed to comply with the Board's remand instructions. Specifically, the December 2020 VA medical opinion was deemed inadequate because it did not include an opinion was to whether the Veteran's arthritis manifested within one year of his separation from service. Pursuant to the Board's March 2021 remand directives, the Veteran was afforded a VA examination in June 2021. Based on examination of the Veteran and review of the record, the VA examiner opined that the Veteran's left shoulder disability is less likely than not directly related to service or manifested to a compensable degree within one year of separation from service. The VA examiner noted the Veteran's history of left shoulder pain, diagnosis of arthritis by x-rays in 2014, and the left shoulder injury during service. However, the VA examiner opined that the Veteran's left shoulder arthritis is consistent with aging and explained that arthritis is one of the most common causes of chronic disability in adults due to pain and altered joint function that is associated with characteristic pathologic changes in the joint tissues. Multiple risk factors have been linked to the pathogenesis of osteoarthritis, including age, joint injury, and anatomical factors including joint shape or alignment. Repeated or history of recurrent strain and injuries increases inflammation and leads to joint arthritis. The examiner noted the single left shoulder injury in service and the normal 1970 x-ray report, and opined that it is not possible to make direct connection of the service complaints to the current arthritis of the left shoulder due to the large time gap. The examiner further opined that the current left shoulder condition is less likely than not manifested to a compensable degree within one year of separation from active service, but gave no rationale. The Board finds that the June 2021 etiology opinion is in adequate, as it relies solely on the lack of documentation of treatment during the period from 1969 to 2014 and does not consider the Veteran's competent lay statement during the June 2021 VA examination that, over the years, he continued to have left shoulder pain. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that a lay person is competent to identify the presence of disability or symptoms of disability subject to lay observation). Therefore, remand is required to obtain an adequate opinion regarding the etiology of the Veteran's left shoulder disability. In addition, the Veteran reported that he was treated for left shoulder pain at the hospital in Guam during service. Hospital treatment records were stored separately from a veteran's service treatment records during that period. Given the apparent water damage to the service treatment records that are currently in the claims folder, it is not clear from the record that any hospital treatment records have been requested or added to the claims folder. For these reasons, remand is warranted to obtain these records. The matter is REMANDED for the following actions: 1. Request and obtain any hospital records pertaining to treatment received at a military hospital in Guam in 1969. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran and his representative must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Then, obtain an addendum opinion from the June 2021 VA examiner, or a suitable substitute, regarding the etiology of the Veteran's current left shoulder disability, to include arthritis. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the VA examiner. Another examination is not required; however, if the examiner indicates that he or she cannot respond to the Board's questions without examination of the Veteran, another examination should be afforded to the Veteran. After a complete review of the record, the examiner is asked to provide the following opinions: (a) Is it at least as likely as not (a 50 percent or greater probability) that any diagnosed left shoulder disability was incurred in or related to his active service? (c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's arthritis was manifested to a compensable degree within one year of separation? ***The examiner is advised that evidence of a prolonged period without medical complaint can be considered, but should not be the only rationale for a negative nexus opinion. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Then, readjudicate the issue on appeal. Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Le, Tai D. 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.