Citation Nr: 22019643 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 18-26 767 DATE: April 2, 2022 REMANDED Entitlement to service connection for a right shoulder condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1982 to November 1986, November 1992 to October 1993, and November 2007 to December 2008, with additional service in the Navy Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in August 2021. In December 2020, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See December 2020 Board Hearing Transcript. As an initial matter, the Board notes that a claim of entitlement to service connection for a lower back condition was also remanded in the August 2021 Board decision. However, in a January 2022 rating decision, service connection was granted for thoracolumbar spine degenerative disc disease. As this represents a full grant of the benefit sought, the issue of entitlement to service connection for a lower back condition is not before the Board on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Entitlement to service connection for a right shoulder condition is remanded. The Board sincerely regrets the delay associated with this remand, particularly as this matter is the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the August 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in August 2021, the Board instructed the AOJ to obtain an opinion regarding the nature and etiology of the Veteran's claimed right shoulder condition. As part of this opinion, the examiner was instructed to address the Veteran's lay history, in-service reports of right shoulder pain and diagnoses of bicipital and rotor cuff tendonitis, and the December 2020 opinion from the Veteran's private physician. In December 2021, the Veteran was afforded a VA examination in which the examiner opined that his right shoulder condition was less likely than not related to his active duty service. However, the examiner did not address the Veteran's lay history or the December 2020 opinion from the Veteran's private physician. Additionally, while the examiner referenced an in-service injury and discussed tendonitis in general, the examiner did not specifically address the in-service diagnoses of bicipital and rotor cuff tendonitis. See December 2021 VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ); December 2021 VA Medical Opinion DBQ. Therefore, in an effort to ensure compliance with VA's duty to assist, the Board finds that a remand is warranted to allow the AOJ to obtain an etiological opinion that substantially complies with the Board's directives. See Stegall v. West, supra. Even if the Board could find substantial compliance with the August 2021 directives, a remand would nonetheless be necessary to obtain an adequate opinion regarding the etiology of the Veteran's right shoulder condition. As discussed above, the Veteran was afforded a VA examination in December 2021, in which the examiner noted a sole diagnosis of right shoulder strain. Ultimately, the examiner opined that his right shoulder condition was less likely than not related to his active duty service. In support of this opinion, the examiner noted that the Veteran's in-service injury was treated as an acute injury and there was no ongoing shoulder condition for years after the 2008 injury. See December 2021 VA Medical Opinion DBQ. However, the Veteran's medical records also reveal a diagnosis of degenerative arthritis and long-term tendonitis. See Kaiser Permanente records, received November 2016 and April 2017. As such, the opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993). Additionally, an examination is inadequate when, as indicated here, an examiner does not consider the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Moreover, the Veteran is competent to report the onset and progression of symptomatology, and an opinion based on the absence of treatment records without consideration of competent lay reports is inadequate. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). For these reasons, the Board finds the December 2021 opinion to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed right shoulder condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, the Board finds that this issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert (IME) is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, multiple VA opinions have been unable to adequately answer the question of the etiology of the Veteran's right shoulder condition. The AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. Lastly, the Board notes that the evidence indicates that there may be pertinent private medical records that are not associated with the electronic claims file. Specifically, the record indicates that the Veteran receives treatment at Kaiser Permanente. See Kaiser Permanente records; December 2020 Board Hearing Transcript. However, only excerpts of records relating to such treatment have been associated with the claims file. The evidence also indicates that, in August 2021 and November 2021, the AOJ requested that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers that provided him with treatment pertinent to his claims. The AOJ also provided the Veteran and his representative with a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, to allow the AOJ to obtain the Veteran's medical records on his behalf. See August 2021 VA Correspondence; November 2021 VA Correspondence. To date, the Veteran has not responded to either request. VA's duty to assist is not a "one-way street," and a Veteran seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining pertinent evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Nonetheless, as a remand of this matter is otherwise warranted, the Board finds that the AOJ should make one more attempt to identify and obtain any pertinent medical records. The Veteran is cautioned that failure to cooperate with any requested development may result in the denial of his claim. See 38 C.F.R. § 3.655. Accordingly, the matter is REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the claims file any outstanding pertinent medical records, whether VA or private, including records relating to treatment at Kaiser Permanente, as well as records relating to treatment at San Diego VA Medical Center from November 2017 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, OBTAIN AN ADVISORY MEDICAL OPINION FROM AN INDEPENDENT MEDICAL EXPERT PURSUANT TO 38 U.S.C. § 5109 AND 38 C.F.R. § . In a March 2018 rating decision, the AOJ declined to reopen the claim of entitlement to service connection for residuals of a left knee injury, finding that new and material evidence had not been submitted.3.328. The AOJ must follow its established procedures for requesting such an advisory opinion. The entire claims file must be provided to, and reviewed by, the physician. If the physician determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations, to include an X-ray or MRI, should be performed. The physician is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) For each diagnosed right shoulder condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. (c.) In formulating the requested opinion, the physician is asked to consider and specifically address: i. The Veteran's lay history, including the December 2020 Board hearing; ii. In-service diagnoses of bicipital and rotor cuff tendonitis and reports of right shoulder pain; iii. Records from Kaiser Permanente indicating diagnoses of degenerative arthritis and long-term tendonitis; and iv. The December 2020 opinion from the Veteran's private physician. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the physician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the physician should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The physician is also advised that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.