Citation Nr: 22014410 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 13-31 473A DATE: March 12, 2022 REMANDED The issues of entitlement to service connection for left and right shoulder disabilities, including as secondary to service-connected cervical spine disability, are remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 1982 to May 1986. These matters come before the Board of Veterans' Appeals (Board) from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) that has since retired. A transcript of the proceeding is of record. The Board remanded these issues in October 2017 and denied the same in June 2018. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) and the issues were the subject of a joint motion for partial remand (JMPR) and approved by the Court in April 2019. In the JMPR, the parties pointed to conflicting findings in the October 2017 and June 2018 respective Board decisions regarding whether the Veteran had current disabilities of his shoulders, separate from his service-connected cervical spine degenerative disc disease. Consequently, the Board remanded these matters for additional development in December 2019. Thereafter, relying on the findings of the February 2020 VA examination, the Veteran's claims were again denied by the Board in June 2020. The Veteran appealed the Board's June 2020 denial of these issues to the Court for a second time, and subsequently, in a May 2021 Joint Motion for Remand (JMR), the Board's decision was vacated, and was remanded by the Court for further proceedings consistent with its May 2021 Motion, citing that the Board erred by not ensuring compliance with its December 2019 remand directives, as required pursuant to the holding in Stegall v. West, 11 Vet. App. 268 (1998). In an October 7, 2021, letter the Board notified the Veteran that the VLJ that conducted the May 2017 Board hearing is no longer with the Board, and he was offered an opportunity to testify at an optional hearing before a VLJ who would ultimately decide his case. On November 23, 2021, the Veteran informed the Board that he does not want another hearing and that his appeal should be decided on the evidence of record. The Board then remanded the appeal again in December 2021 in order to obtain a nexus opinion based on aggravation. Unfortunately, the Board finds that additional remand is once again necessary in order to obtain an adequate opinion. In this regard, in its December 2021 remand, the Board directed the AOJ to obtain an opinion that addressed the aggravation element of the Veteran's claim for secondary service connection. In doing so, the Board defined "aggravation" as "permanently worsened in severity beyond a natural progression" as opposed to a temporary worsening of symptoms. Parenthetically, that instruction also appeared on the December 2021 VA examination report. However, aggravation by a service connected disability is not required to be permanent for secondary service connection to be established. Ward v. Wilkie, 31 Vet. App. 233 (2019). Instead, "any incremental increase in disability and any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence" constitutes aggravation. Id. Given that the wrong standard for aggravation was used, the Board finds that another remand is needed to obtain the requested aggravation opinion applying the correct definition. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers a right on a claimant to compliance with the remand order); El Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). The matters are REMANDED for the following action: Return the Veteran's claims file to the examiner who provided the December 2021 opinion so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new physical or telehealth examination is only required if deemed necessary by the examiner. The examiner should address the following: a) State whether it is at least as likely as not (50 percent probability or greater) that any current disability of the Veteran's left shoulder has been aggravated by his service-connected cervical spine degenerative disc disease with spondylosis. b) State whether it is at least as likely as not (50 percent probability or greater) that any current disability of the Veteran's right shoulder has been aggravated by his service-connected cervical spine degenerative disc disease with spondylosis. There is no requirement that aggravation be permanent in nature. The examiner must provide a complete rationale for all opinions. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why any such opinion would require speculation. S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.