Citation Nr: 22016257 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 10-49 554 DATE: March 21, 2022 REMANDED Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for an upper back disability is remanded. Entitlement to service connection for a lower back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1982 to June 1986 and from February 1987 to January 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by a Department of Veterans Affairs (VA) the Regional Office (RO). The Veteran attended a hearing before a Veterans Law Judge in April 2016. A copy of the transcript is associated with the claims file. The Veterans Law Judge who held the hearing is no longer employed by the Board, and the Veteran was notified of his right to attend another hearing. In December 2018, the Veteran responded in writing and indicated that he did not want to attend another hearing. Therefore, the Board will decide this matter based on the evidence of record. This matter was previously before the Board in August 2016, October 2017, and May 2019. In October 2017 the claims for entitlement to service connection for a right shoulder disability and right elbow disability were denied by the Board, while the claims for entitlement to service connection for upper and lower back disabilities were remanded. The Veteran appealed the Board's October 2017 denial of entitlement to service connection for a right shoulder disability and right elbow disability to the United States Court of Appeals for Veterans Claims (Court). In September 2018 the Court issued an order granting a Joint Motion for Partial Remand (JMPR) setting aside the Board's October 2017 decision and remanding the issues for further proceedings. In May 2019 and September 2019, the Veteran's claims were once again remanded by the Board. All the issues on appeal were denied by the Board in a December 2020 Board decision, which was appealed to the Court. In October 2021, the parties filed a Joint Motion for Remand (JMR) to vacate and remand the December 2020 Board decision and the Court issued an Order granting the JMR and remanding the appeal for action consistent with the JMR. 1. Entitlement to service connection for a right elbow disability is remanded. 2. Entitlement to service connection for a right shoulder disability is remanded. 3. Entitlement to service connection for an upper back disability is remanded. 4. Entitlement to service connection for a lower back disability is remanded. The RO obtained VA medical opinions regarding the Veteran's claimed right elbow, right shoulder, upper back, and lower back disabilities in July 2020. In the July 2020 medical opinions, the VA examiner supported his opinion in part by noting that there is "no documentation" for complaints, evaluation, diagnosis, or treatment of a right elbow, right shoulder, lower back, or upper back condition during service. However, the examiner did not address the Veteran's testimony at the April 2016 Board hearing that he had injuries to his shoulder and elbow during his active service and that he was experiencing pain in his shoulder and elbow since service. Lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Therefore, the July 2020 opinions are inadequate, and the RO must obtain new VA medical opinions. In an April 2016 written statement, the Veteran also reported that within months of his separation from service, his elbow, shoulder, and back were "hurting a lot" from his work, and he testified at the April 2016 hearing that he saw a chiropractor within months of separating from active duty service. On remand, the RO should obtain an addendum opinion addressing the Veteran's reported pain and treating both during service and within a few months of service. Additionally, the July 2020 VA examiner's opinion regarding the Veteran's upper back disability referenced Dr. J.C.'s November 2016 findings of mild multi-level facet arthropathy and opined that the findings were at least as likely as not related to the aging process; however, the examiner did not provide an adequate rationale to support that opinion. On remand, the RO should obtain an addendum opinion addressing Dr. J.C.'s November 2016 findings of mild multi-level facet arthropathy. If the examiner determines that the facet arthropathy is related to the normal aging process, he or she must provide an adequate rationale to support that opinion. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a qualified clinician regarding the Veteran's claimed upper back disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider those symptoms a "disability" for the purpose of providing the requested opinions below. If the examiner determines that there is no current upper back disability, the examiner must address the November 2016 letter from Dr. J.C. indicating that the Veteran had findings of mild multi-level facet arthropathy. The examiner is asked to provide a response to the following: a) Is any upper back disability at least as likely as not related to service, including the Veteran's reported in-service injuries. b) Did any current upper back disability (1) begin during active service, (2) manifest within one year after discharge from service, or (3) continue with the same symptomatology since service? The examiner must address the Veteran's reported symptoms during and since service, as well as his reported chiropractic care within months of his discharge of service. If the examiner determines that the mild multi-level facet arthropathy noted by Dr. J.C. in the November 2016 letter is related to the normal aging process, he or she must provide an adequate rationale to support that opinion. Provide a thorough rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In considering the Veteran's descriptions and assertions, the examiner must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. Thus, the fact that there are no service treatment records documenting the injuries and symptoms the Veteran has reported does not, in and of itself, render the Veteran's reports of continued symptoms during and after his active service not credible. Accordingly, the examiner should accept as true the Veteran's assertions unless there are factors in addition to a lack of contemporaneous treatment records that call into question his credibility as to the matter. 2. Obtain a medical opinion from a qualified clinician regarding the Veteran's claimed lower back disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider those symptoms a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: a) Is any lower back disability at least as likely as not related to service, including the Veteran's reported in-service injuries? b) Did any current lower back disability (1) begin during active service, (2) manifest within one year after discharge from service, or (3) continue with the same symptomatology since service? The examiner must address the Veteran's reported symptoms during and since service, as well as his reported chiropractic care within months of his discharge of service. Provide a thorough rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In considering the Veteran's descriptions and assertions, the examiner must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. Thus, the fact that there are no service treatment records documenting the injuries and symptoms the Veteran has reported does not, in and of itself, render the Veteran's reports of continued symptoms during and after his active service not credible. Accordingly, the examiner should accept as true the Veteran's assertions unless there are factors in addition to a lack of contemporaneous treatment records that call into question his credibility as to the matter. 3. Obtain a medical opinion from a qualified clinician regarding the Veteran's claimed right elbow disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider those symptoms a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: a) Is any right elbow disability at least as likely as not related to service, including the Veteran's reported in-service injuries? b) Did any current right elbow disability (1) began during active service, (2) manifest within one year after discharge from service, or (3) continue with the same symptomatology since service? The examiner must address the Veteran's reported symptoms during and since service. Provide a thorough rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In considering the Veteran's descriptions and assertions, the examiner must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. Thus, the fact that there are no service treatment records documenting the injuries and symptoms the Veteran has reported does not, in and of itself, render the Veteran's reports of continued symptoms during and after his active service not credible. Accordingly, the examiner should accept as true the Veteran's assertions unless there are factors in addition to a lack of contemporaneous treatment records that call into question his credibility as to the matter. 4. Obtain a medical opinion from a qualified clinician regarding the Veteran's claimed right shoulder disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider the symptoms a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: a) Is any right shoulder disability at least as likely as not related to service, including the Veteran's reported in-service injuries? b) Did any current right shoulder disability (1) began during active service, (2) manifest within one year after discharge from service, or (3) continue with the same symptomatology since service? The examiner must address the Veteran's reported symptoms during and since service. Provide a thorough rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In considering the Veteran's descriptions and assertions, the examiner must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. Thus, the fact that there are no service treatment records documenting the injuries and symptoms the Veteran has reported does not, in and of itself, render the Veteran's reports of continued symptoms during and after his active service not credible. Accordingly, the examiner should accept as true the Veteran's assertions unless there are factors in addition to a lack of contemporaneous treatment records that call into question his credibility as to the matter. T. J. ANTHONY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Boal, 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.