Citation Nr: 22016881 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 16-60 631 DATE: March 23, 2022 REMANDED Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for right shoulder disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1974 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) from a November 2015 rating decision by the Agency of Original Jurisdiction (AOJ). This case was most recently before the Board in July 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. In a September 2002 Primary Care Assessment, the Veteran noted a history of joint pain. October 2012 VA treatment records show complaints of right shoulder pain. January 2015 VA treatment records show complaints of neck pain. In September 2021, a VA examiner opined that the Veteran's claimed right shoulder disorder and his diagnosis of degenerative disease of cervical spine are less than likely as not incurred in, caused by, or had onset during service. The examiner stated that the Veteran has degenerative disease of the cervical spine after many years of leaving service and the degenerative disease is a natural process of aging, appropriate for his age. The examiner stated that the Veteran's injury on the side of his neck and his right shoulder injury, both noted as occurring 8 months prior to July 1974, were most likely acute and resolved as he was now asymptomatic, examination was normal, and he was fit for duty. The examiner stated that s/he could not locate any documented evidence of serious injury or chronic condition of his neck during service or in his civilian record immediately after leaving service. In January 2022, a VA examiner stated that the Veteran was diagnosed with degenerative disease of cervical spine many years after leaving service, and pain in 2015 also occurred many years after leaving service; the examiner opined that this was likely due to the chronic condition of degenerative disease. The examiner concluded that these two conditions occurred many years after leaving service and are not related to injury during service as that injury was resolved and examination at that time was normal and the Veteran was deemed fit for duty. The Board finds the September 2021 and January 2022 VA medical opinions inadequate to decide the claim. Although the examiner appears to state that there was no evidence of treatment for degenerative arthritis until 2012 and 2015, the record reveals evidence of complaints of joint pain elsewhere in the record, to include in 2002, which the examiner has not addressed. Additionally, the examiner relies on a lack of documentation of chronic injury in and immediately following service, despite the 1974 report of neck and right shoulder injuries and post-service complaints of joint pain. Essentially, the VA examiners appear to rely solely on the lack of testing conducted during service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the VA examiners failed to provide supporting rationale for the conclusions reached. Accordingly, the Board concludes that an additional VA examination for the Veteran's claimed hypertension should be afforded. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given these deficiencies, the Board finds that the RO did not substantially comply with the April 2021 Board remand directives. The Board errs when it fails to ensure substantial compliance with a Board remand. These records have not been associated with the claims folder. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. Accordingly, the Board finds it necessary to remand these issues to afford the Veteran an additional and adequate VA examination. Accordingly, the matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, 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 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. Thereafter, obtain addendum medical opinions from an appropriate clinician as to the nature and etiology of the Veteran's neck and right shoulder disorders. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the examiner. After the record review, the reviewing clinician is asked to respond to the following: (a) For each diagnosed neck disorder, offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such had its onset during, or is otherwise related to, the Veteran's military service. (b) If arthritis is diagnosed, offer an opinion as to whether such manifested within one year of the Veteran's separation from service in October 1978 (i.e. by October 1979) and, if so, describe the manifestations. In rendering his or her opinion, the examiner should consider and discuss the Veteran's service treatment records, to include the July 1978 separation examination noting a neck injury eight months prior with pain in the right side of his neck since December 1977; VA treatment records from 2002 indicating complaints of joint pain; VA treatment records from 2015 indicating complaints of neck pain; and the January 2016 VA treatment record reflecting the Veteran has degenerative joint disease of multiple joints, listing the neck. (c) For each diagnosed right shoulder disorder, offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such had its onset during, or is otherwise related to, the Veteran's military service. (d) If arthritis is diagnosed, offer an opinion as to whether such manifested within one year of the Veteran's separation from service in October 1978 (i.e. by October 1979) and, if so, describe the manifestations. In rendering his or her opinion, the examiner should consider and discuss the July 1978 service treatment record noting a right shoulder injury eight months prior; VA treatment records from 2002 indicating complaints of joint pain; VA treatment records from 2012 indicating complaints of right shoulder pain; and the January 2016 VA treatment record reflecting the Veteran has degenerative joint disease of multiple joints, listing the right shoulder. The examiner is advised that an adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resorting to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include 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. Mariah N. Sim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Wilson, Associate 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.