Citation Nr: 22015069 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-38 397 DATE: March 16, 2022 REMANDED Entitlement to service connection for lumbar spine disability is remanded. Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for left shoulder disability is remanded. Entitlement to service connection for non-ischemic cardiomyopathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from October 1979 to June 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from the December 2014 and July 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board issued a decision denying the Veteran's cardiac disability claim currently on appeal, and remanded the remaining service connection claims listed above. The Veteran appealed the Board's denial of his cardiac disability to the United States Court of Appeals for Veterans Claims (CAVC), resulting in the April 2021 Joint Motion for Partial Remand (JMPR). In an April 2021 Order, CAVC granted the JMPR, thereby partially vacating the June 2020 Board decision, and remanding the issue for readjudication consistent with the JMPR. In September 2021, the Board remanded the Veteran's claims for additional development. The Board notes that there was not substantial compliance with its September 2021 remand directives, as it pertains to the claims for service connection for a lumbar spine disability, cervical spine disability, and left shoulder disability. 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 lumbar spine disability is remanded. 2. Entitlement to service connection for cervical spine disability is remanded. 3. Entitlement to service connection for left shoulder disability is remanded. As noted above, in September 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 June 2020 negative VA medical opinions, which failed to consider the Veteran's lay statements and improperly relied on the lack of objective evidence in-service of complaints, treatment, or diagnosis of the claimed conditions. In October 2021 and December 2021, the Veteran was provided several VA examinations and medical opinions, in response to the Board's September 2021 remand. For each claim, the examiner provided unfavorable nexus opinions as to the Veteran's claimed conditions having an onset during active service or otherwise related to his active service. Nevertheless, the Board finds these examinations and/or medical opinions to be inadequate, as the examiner also failed to consider the Veteran's lay statements in providing the requested opinions, as well as, improperly relied on the lack of objective evidence in-service of complaints, treatment, or diagnosis of the claimed cervical spine disability. Additionally, the Board notes that regarding the Veteran's claimed left shoulder and lumbar spine disabilities, the examiner found that the Veteran does not have a current diagnosis of either, and thus, rendered a negative nexus opinion primarily on the basis that the most recent radiograph images given in October 2021 were negative for any degenerative or arthritis changes of the left shoulder and lumbar spine. However, the Board finds these rationales to be inadequate, as the examiner failed to provide an etiology opinion based on the Veteran's diagnosed conditions given in the July 2020 VA examination during the appeal period or provide an adequate rationale as to the change in diagnoses as resolved conditions (the Board notes that the mere notation that there were no degenerative or arthritic changes on the October 2021 MRI is not a sufficient rationale). Moreover, the examiner failed to provide any further discussion or etiology opinion for the other diagnosed conditions of spinal stenosis and spondylolisthesis given in the October 2021 VA examination. Therefore, based on the above, the Board finds that the Veteran should be provided additional addendum VA medical opinions that adequately addresses 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. 4. Entitlement to service connection for non-ischemic cardiomyopathy is remanded. As noted above, in September 2021, the Board remanded the Veteran's claim for further development in response to CAVC's April 2021 JMPR, specifically requesting that an addendum VA medical opinion be provided due to the inadequacy of the December 2014 negative nexus VA medical opinion that provided an insufficient rationale. In October 2021, the Veteran was provided an addendum VA medical opinion in response to the Board's September 2021 remand. Upon review, the examiner provided an unfavorable nexus opinion as to the Veteran's cardiac disability having an onset during active service or otherwise related to his active service. Nevertheless, the Board finds the medical opinion to be inadequate, as the examiner improperly relied on the lack of objective evidence in-service of complaints, symptoms, or diagnosis of the claimed cardiac disability, without further discussion or consideration of the Veteran's lay statements regarding the onset of symptoms and continuity of symptomatology. Therefore, based on the above, the Board finds that the Veteran should be provided an additional addendum VA medical opinion that adequately addresses the etiology of his claimed condition, in accordance with VA's duty to assist. 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 lumbar spine disability, cervical spine disability, left shoulder disability, and cardiac disability, 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 the Veteran with addendum VA medical opinions to determine the nature and etiology of the Veteran's lumbar spine disability, cervical spine disability, left shoulder disability, and cardiac disability. If the October 2021 VA examiner is not available, obtain the necessary addendum opinions from 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. The Veteran should be scheduled for another examination if deemed necessary by the person providing the addendum report to 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 lumbar spine disability had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service, to include the assertion of having to wear a 75 pound back pack and/or steel pot under the helmet during service. Please note: the examiner must provide an opinion as to each diagnosed condition of record. If the examiner finds that any of the Veteran's currently diagnosed lumbar spine disabilities have since resolved, the examiner must provide an adequate rationale as to the change of diagnosis from those reflected in the record. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's diagnosed cervical spine disability had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service, to include the assertion of having to wear a 75 pound back pack and/or steel pot under the helmet during service. Please note: the examiner must provide an opinion as to each diagnosed condition of record. If the examiner finds that any of the Veteran's currently diagnosed cervical spine disabilities have since resolved, the examiner must provide an adequate rationale as to the change of diagnosis from those reflected in the record. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed left shoulder disability had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service, to include the assertion of having to wear a 75 pound back pack and/or steel pot under the helmet during service. Please note: If the examiner finds that the Veteran's currently diagnosed left shoulder disability has since resolved, the examiner must provide an adequate rationale as to the change of diagnosis from those reflected in the record. (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 and onset of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that he is reports must be considered in formulating the requested opinion. (Continued on the next page) (e) If the examiner(s) is unable to offer the requested opinion(s), 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. See Jones v. Shinseki, 23 Vet. App. 382. (2010). 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.