Citation Nr: 22013422 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-01 690 DATE: March 9, 2022 REMANDED Entitlement to service connection for a right elbow condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for a respiratory condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from October 1975 to June 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In April 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing. A transcript of the hearing is of record. These issues were previously before the Board in December 2018 and July 2021, where they were remanded for additional development. The Board notes that there was not substantial compliance with its July 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for a right elbow condition is remanded. 2. Entitlement to service connection for a right shoulder condition is remanded. As noted above, in July 2021, the Board remanded the Veteran's claims for further development, specifically requesting that addendum VA medical opinions be provided due to the inadequacy of the nearly identical September 2019 negative nexus VA medical opinions that were based on the absence of medical records showing the onset of the diagnosed conditions in service. Within the remand directives, the Board explicitly noted that "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." See BVA Decision, July 2021. In October 2021, addendum VA medical opinions were provided to the Veteran in response to the Board's July 2021 remand. Upon review of each, the examiner provided unfavorable nexus opinions, in which the Board finds to be inadequate, as the opinions, which are also written nearly identically, once again, provided a rationale that improperly relied on the lack of medical evidence in-service showing an onset and the lack of contemporaneous medical evidence post-service corroborating continued care and treatment for any right elbow and right shoulder conditions, with no actual discussion on whether the Veteran's contended in-service injuries while working as a tank crewman (which the examiner accepted as true) caused his currently diagnosed conditions. As these rationales are based on evidence that was specifically directed not to be used in explaining the etiology, or lack thereof, for the Veteran's current disabilities, the Board finds that the Veteran should be provided additional addendum VA medical opinions that adequately address the etiology of his claimed conditions, in accordance with VA's duty to assist and in compliance with Stegall. Accordingly, a remand is necessary to address the matters discussed above. 3. Entitlement to service connection for a respiratory condition is remanded. As noted above, in July 2021, the Board remanded the Veteran's claim for further development, specifically requesting that an addendum VA medical opinion be provided due to the inadequacy of the September 2019 negative nexus VA medical opinion that failed to specifically address the Veteran's in-service exposure to exhaust fumes and instead concluded that the Veteran's history of smoking was the likely cause of his respiratory conditions. See BVA Decision, July 2021. In October 2021, an addendum VA medical opinion was provided to the Veteran in response to the Board's July 2021 remand. Upon review, the examiner provided an unfavorable nexus opinion, in which the Board finds to be inadequate, as the opinion, once again, failed to specifically address the Veteran's in-service exposure to exhaust fumes as it relates to the etiology of his diagnosed conditions, and instead concluded that the Veteran's history of smoking was the most common cause for his diagnosed respiratory conditions. Additionally, the examiner improperly relied on the lack of medical evidence in-service showing an onset of the diagnosed conditions. Therefore, the Board finds that the Veteran should be provided an additional addendum VA medical opinion that adequately address the etiology of his claimed condition, in accordance with VA's duty to assist and in compliance with Stegall. Accordingly, a remand is necessary to address the matters discussed above. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his right elbow, right shoulder, and respiratory conditions, and obtain any outstanding records and associate them with the Veteran's claims file. 2. After associating all newly acquired records with the claims file, send the claims file back to the October 2021 VA examiner to provide addendum medical opinions to determine the nature and etiology of the Veteran's claimed right elbow, right shoulder, and respiratory conditions. If the October 2021 VA examiner is not available, forward the claims file to another appropriate clinician. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. If the examiner deems that additional VA examinations are needed to provide such opinions, schedule the Veteran for such examinations. Following complete review of the record, the examiner must address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's diagnosed right elbow conditions had its onset during any period of active duty or is otherwise etiologically related to his active duty service, to include any contended in-service injuries while working as a tank crewman. Please note: in the requested opinion, the examiner cannot rely on the lack of in-service evidence of an onset of any diagnosed condition or any lack of contemporaneous evidence post-service as a rationale for why the current disabilities are not related to service. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's diagnosed right shoulder conditions had its onset during any period of active duty or is otherwise etiologically related to his active duty service, to include any contended in-service injuries while working as a tank crewman. Please note: in the requested opinion, the examiner cannot rely on the lack of in-service evidence of an onset of any diagnosed condition or any lack of contemporaneous evidence post-service as a rationale for why the current disabilities are not related to service. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's diagnosed respiratory conditions had its onset during any period of active duty or is otherwise etiologically related to his active duty service, to include any contended in-service exposure to exhaust fumes. (d) Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran's lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. (e) If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to 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. Signature on the next page DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.