Citation Nr: 22018856 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 15-40 359 DATE: March 30, 2022 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1973 to January 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously before the Board in March 2019. The Board reopened the Veteran's claims and remanded the issues of entitlement to service connection for bilateral shoulder conditions. Specifically, the Board remanded the issues on appeal to RO to provide the Veteran with a VA examination. However, as discussed below, the Board finds that remand is necessary for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board acknowledges that additional evidence, including VA treatment records and VA examinations, have been associated with the claims file since the RO issued a June 2020 Supplemental Statement (SSOC) of the case regarding the Veteran's claims to service connection for bilateral shoulder disabilities. The Board finds that waiver of the additional evidence associated with the claims file is not warranted as the evidence is redundant and cumulative of the evidence of record at the time of the June 2020 SSOC, and/or not relevant to the issues on appeal. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. The Veteran seeks service connection for bilateral shoulder disabilities. See September 2014 VA Form 21-526. Specifically, the Veteran contends that he injured his shoulders while serving on the U.S.S. Midway on active duty while bringing a 1000-pound motor from the lower decks which struck him, pinning him against the bulkhead. See August 1999 correspondence; September 1999 correspondence; January 2015 Notice of Disagreement (NOD); November 2015 VA Form 9; July 2020 correspondence. As noted, the Board previously remanded the issues of entitlement to service connection for bilateral shoulder disabilities in March 2019 to obtain a VA examination. The Veteran was afforded a VA examination in October 2019 and a subsequent VA medical opinion was provided in May 2020. When VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For a medical opinion to be adequate, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board's remand directed the examiner to address the nature and etiology of the Veteran's bilateral shoulder disabilities, including addressing the Veteran's lay statements regarding the reported in-service injury. In October 2019, the VA examiner noted the Veteran's report of being crushed against a bulkhead by a motor in service and reporting shoulder pain when taken to sick bay. See October 2019 VA examination. The VA examiner diagnosed the Veteran with post-operative changes of the bilateral shoulders and noted that X-rays did not show arthritis. Id. The VA examiner noted the Veteran's records show reports of shoulder pain starting in 1988, 13 years after service and that the Veteran reported shoulder pain since 1984, 9 years after service. Id. The VA examiner noted the Veteran first had surgery in 1990 and multiple surgeries since that time. Id. The VA examiner noted there was no statement relating the Veteran's condition to service. Id. However, the VA examiner did not provide an opinion as to whether the Veteran's bilateral shoulder conditions were at least as likely as not related to an in-service injury, event, or illness. Id. Additionally, the VA examiner did not address the Veteran's private treatment records that indicate the Veteran may have a diagnosis of arthritis of his bilateral shoulders. See December 1993, March 1999, and May 1992 private treatment records. Further, the VA examiner did not address the Veteran's private treatment records that indicate the Veteran's reports of bilateral shoulder pain prior to 1984. For example, a March 1999 private treatment record noted the Veteran's report of a 15- to 20-year history of joint pain. As such, the Board finds the October 2019 VA examination inadequate for decision making purposes and entitlement to little probative value. See Nieves-Rodriguez, 22 Vet. App. at 302. The May 2020 VA examiner opined that the Veteran's bilateral shoulder disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. See May 2020 VA medical opinion. As rationale, the VA examiner merely noted that review of the Veteran's service treatment records did not show any evidence of a bilateral shoulder injury while on active duty or within one year of separation. Id. However, the VA examiner did not address the Veteran's lay statements regarding his reports of bilateral shoulder pain in service as result of the injury. The Veteran's service treatment records show the Veteran crushed his hand in February 1974 when he was stationed aboard the USS Midway. The VA examiner primarily relied on the absence of treatment or report of bilateral shoulder pain in service in providing the negative nexus opinion. The mere absence of treatment or diagnosis of a condition in-service cannot be the sole basis for a negative nexus opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). Additionally, the Board notes that the Veteran is competent to provide lay evidence of the existence of symptoms that are capable of lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). In a July 2020 statement, the Veteran explained that he reported his bilateral shoulder, hip and back pain at the time he reported and was treated for his hand injury; he is unclear why the injuries other than the hand injury are not documented in his service treatment records. As such, the Board finds the May 2020 VA medical opinion inadequate for decision making purposes and remand is necessary to obtain an adequate addendum medical opinion addressing the nature and etiology of the Veteran's bilateral shoulder disabilities in order to comply with the Board's prior remand directives. See Nieves-Rodriguez, 22 Vet. App. at 302; Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Forward the claims file and a copy of this Remand to the examiner who provided the May 2020 VA medical opinion, or, if that examiner is unavailable, to another suitably qualified physician, for completion of an addendum opinion to determine the nature and etiology of the Veteran's bilateral shoulder disabilities. If the examiner determines that a new examination is necessary to provide the requested opinion, such examination should be scheduled. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral shoulder disabilities had their onset during service or are otherwise causally or etiologically related to his active duty service. A complete and adequate rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report symptoms. The examiner must address the Veteran's lay statements regarding his in-service injury while moving a large motor and report of bilateral shoulder pain in February 1974 during his service. The VA examiner must address the Veteran's private treatment records that indicate a long history of bilateral shoulder pain. See March 1999 private treatment records. The VA examiner must address the Veteran's private treatment records indicating a diagnosis for arthritis of the bilateral shoulders, and whether the previous diagnosis was incorrect. If the prior diagnosis of arthritis was incorrect, the VA examiner must explain why such diagnosis was incorrect. The examiner is also reminded than an opinion based solely on the lack of documentation of the claimed bilateral shoulder injury in the Veteran's service treatment records will not be adequate; instead, it must be based on a full review of the record, including the Veteran's lay statements. If the examiner cannot provide an opinion without resorting to speculation, they should explain why an opinion cannot be provided. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.