Citation Nr: 23016187 Decision Date: 03/16/23 Archive Date: 03/16/23 DOCKET NO. 16-33 422 DATE: March 16, 2023 REMANDED Entitlement to service connection for left shoulder disorder is remanded. Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for a left-hand disorder is remanded. Entitlement to service connection for a right-hand disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1989 to April 1993. In November 2022, the Board previously remanded the current claims for additional development. The Board notes that, in July 2019, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is not available to participate in this decision. As indicated in the November 2022 Board remand, the Veteran was notified that the VLJ who conducted the July 2019 hearing was no longer available, and of his right to another Board hearing. The Veteran responded that he did not wish to appear at another Board hearing. Entitlement to service connection for a left shoulder, left and right hand, and left hip disorders are remanded. In the November 2022 decision, the Board remanded these matters consistent with the April 2022 Memorandum decision. Notably, in the April 2022 Memorandum decision, the United States Court of Appeals for Veterans Claims (Court) found that the previous VA medical opinions of record were improperly based on the absence of contemporaneous, objective medical evidence and did not address the Veteran's statements. Thus, the Board requested that the RO obtain VA medical opinions to address the etiology of the Veteran's left shoulder, left hand, right hand, and left hip disabilities. The Board also instructed that the lack of contemporaneous records documenting complaints of or treatment for a left shoulder, left hand, right hand, and/or left hip disability, alone, is an insufficient rationale for a medical nexus opinion and, if the examiner rejects the Veteran's reports regarding current or past symptoms, the examiner must provide a reason for doing so. To comply with the Board's November 2022 remand directives, the RO procured December 2022 VA medical opinions to address the etiology of the Veteran's left shoulder, left hand, right hand, and left hip disorders. The same VA examiner evaluated all disorders. Regarding each disorder, the examiner rendered negative nexus opinions. The examiner also provided the same generic rationale for each disorder indicating that there was nothing objective in the 3826 pages of the e-file to show any related issues in service, nor was there anything to support chronicity post service. The Board emphasizes, however, that this rationale does not comply with the Board's remand instructions, which specifically directed the examiner to provide a rationale that does not simply rely on the lack of contemporaneous records documenting disabilities and that provides a reason for rejecting the Veteran's reports. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, remand is warranted for new VA examinations and medical opinions consistent with the directives herein. The matters are REMANDED for the following action: 1. Obtain VA medical opinions from appropriate examiner(s) to determine the nature and etiology of the Veteran's left hip disorder and left shoulder disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner(s). The examiner(s) should opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed disabilities of the left hip and left shoulder are related to the Veteran's active-duty service, to include the in-service fall from a ladder. In rendering the above opinions, the examiner(s) must consider and discuss the Veteran's various reports of continuing disabilities of the left shoulder and hip following separation from service (See July 2019 Board Hearing Testimony). The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. The examiner(s) is further advised that the lack of contemporaneous records documenting complaints of or treatment for a left shoulder, and/or left hip disability, alone, is an insufficient rationale for a medical nexus opinion. If the examiner(s) rejects the Veteran's reports regarding current or past symptoms, the examiner must provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. 2. Obtain a VA examination and medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran's left- and right-hand disorders. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) The examiner should provide a diagnosis for any current left and/or right-hand disability. In rendering such diagnoses, the examiner is reminded that pain that causes functional impairment of earning capacity may constitute a disability even if there is no formal diagnosis. b) The examiner should opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed left and/or right-hand disabilities are related to the Veteran's active-duty service, to include the in-service fall from a ladder. In rendering the above opinions, the examiner must consider and discuss the Veteran's various reports of continuing disabilities of the hands following separation from service (See July 2019 Board Hearing Testimony). The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. The examiner is further advised that the lack of contemporaneous records documenting complaints of or treatment for right- and left-hand disabilities, alone, is an insufficient rationale for a medical nexus opinion. If the examiner(s) rejects the Veteran's reports regarding current or past symptoms, the examiner must provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.