Citation Nr: 22038656 Decision Date: 07/06/22 Archive Date: 07/06/22 DOCKET NO. 13-18 248 DATE: July 6, 2022 REMANDED Entitlement to service connection for a left shoulder disability is remanded. REASONS FOR REMAND The Veteran had active service from March 2002 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The matter on appeal was previously denied by the Board in August 2020. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Court granted a Joint Motion for Remand (JMR) of the parties, vacated the Board decision, and remanded the case to the Board for action consistent with the JMR. In December 2021, the Board remanded the case for additional development. It has since been returned to the Board for further appellate action. Regrettably, the Board finds that the development conducted does not comply with the prior Board remand directives. In this regard, the Board instructed the AOJ to obtain a VA medical opinion addressing the Veteran's history of multiple shoulder dislocations during his active service. In March 2022, the examiner opined that the Veteran's left shoulder disability was less likely than not incurred in or caused by his active service. In support of this opinion, the examiner determined that the Veteran's left shoulder strain and bone contusion during service was acute only. The examiner stated that the Veteran presented with full range of motion and mild discomfort after his in-service injury. At the Veteran's October 2004 separation examination, he reported that his health had not changed since earlier exams and that he had no new illnesses or injuries. The examiner noted that the October 2004 examiner found '"no ongoing issues"' and the Veteran did not seek further medical attention for his left shoulder for the remainder of his active service. Therefore, the examiner concluded that the Veteran's symptoms/acute shoulder condition fully resolved. Further, the examiner found no evidence of chronicity of care. The examiner stated that the Veteran's 2005 work-related injury at the railroad was a separate, unrelated condition, and no nexus had been established. The examiner observed that a 2005 MRI identified evidence consistent with a previous dislocation, defined as any dislocation occurring prior to date of MRI, and likely referring to the Veteran's work-related injury in 2005. The examiner stated that the continued pain reported by the Veteran after his work-related injury in 2005 was consistent with the 2005 MRI findings. The examiner determined that the 2005 MRI findings were incongruent with the Veteran's reported lack of consistent pain, and minimal, movement dependent pain, following his 2004 in-service injury. The examiner stated that the Veteran was diagnosed with labral tear, tendinosis of the left distal supraspinatus tendon, and left shoulder arthroscopy in 2005, which was consistent with his 2005 work-related injury and less likely than not related to the in-service shoulder strain and bone contusion. The examiner concluded that the Veteran did not have a continuous left shoulder disability that was caused by his active service. The March 2022 VA examiner added that the Veteran's account of the development of his left shoulder disability was not consistent with the medical evidence, as the medical evidence did not support multiple dislocations of left shoulder during service. The examiner found no records from February 2004 to October 2004 that corroborated the Veteran's reported history of multiple dislocations. The examiner noted that the Veteran did not report a history or problems with his left shoulder as far as dislocations, fractures, or injuries prior to his work-related injury in 2005. The examiner pointed out that after the Veteran's work-related injury, he experienced pain that neither he nor his employer could ignore. The examiner stated that the Veteran's pain was inconsistent with the pain he experienced from his in-service injury. Given the 2005 MRI findings and literature review, the examiner remarked that MRI indications of anterior dislocation of the left shoulder would occur promptly after initial insult and would be identifiable on MRI immediately following injury. Additionally, the MRI finding of BME usually resolved within three months and could take up to six months to fully recover. The examiner stated that BME seen on the 2005 MRI was congruent with Veteran's presentation following 2005 work-related injury and less likely associated with the 2004 in-service injury. In this regard, any possible BME following the 2004 in-service injury would have most likely resolved prior to 2005, and the Veteran's pain appeared to have resolved after the 2004 in-service injury. Furthermore, the examiner noted that MRI findings of previous dislocation was not specific or determining of the lapse of time since previous dislocation. The examiner found it reasonable to believe that dislocation two months prior to the 2005 MRI was the previous dislocation identified in MRI findings report, and that the radiologist identified evidence of a dislocation, no longer present at the time of the 2005 MRI, therefore defining previous dislocation as any dislocation prior to date of MRI. The Board finds that a new addendum opinion is required. Here, the examiner acknowledged the Veteran's account of his recurrent shoulder dislocations during service, but discounted those statements by relying on the absence of documented history or problems with his shoulder prior to his work-related injury in 2005. A medical opinion based solely on the absence of documentation in the service treatment records or that fails to consider lay statements is inadequate. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). Furthermore, the examiner did not explain the mechanism of injury to the Veteran's left shoulder as a result of multiple shoulder dislocations during his active service. The Board notes that compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the AOJ must obtain an addendum VA medical opinion. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Return the claims file to a VA examiner with sufficient expertise for an addendum medical opinion to determine the nature and etiology of any currently present left shoulder disability. The claims file must be made available to and reviewed by the examiner. Based on a review of the record, the examiner should first identify all left shoulder disabilities present during the pendency of the claim, or proximate thereto. Then, for any identified left shoulder disability, the examiner should provide an opinion as to whether it is at least as likely as not (approximately 50 percent or better probability) that the identified left shoulder disability had its onset during the Veteran's active service or is otherwise etiologically related to such service. In forming this opinion, the examiner must address the February 2004 STR notation of a left shoulder injury, the Veteran's lay statements that his left shoulder came out of his socket several times and he had a history of multiple shoulder dislocations during his active service, and the mechanism of injury thereof. The examiner should consider the Veteran competent to report that his shoulder came out of its socket several times during service. The rationale for all opinions expressed must be provided. 3. Then, readjudicate the appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Jessica Seay Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.