Citation Nr: 23019751 Decision Date: 03/30/23 Archive Date: 03/30/23 DOCKET NO. 19-13 587 DATE: March 30, 2023 REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a nasal bridge scar is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Marine Corps from November 1975 to November 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The claims were remanded in February 2020 for further development. They have since been returned to the Board for appellate review. During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted service connection for a traumatic brain injury in a September 2020 rating decision. The grant constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). As such, this matter is no longer in appellate status and is no longer before the Board. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Upon review of the claims file, the Board finds that remand is necessary for further development. With reference to the Veteran's claim for a left shoulder disorder, he was most recently afforded a VA examination in March 2020. At that time, the examiner opined that it is less likely than not the left shoulder disorder was incurred in or caused by the claimed in-service, injury, event, or illness. In doing so, he indicated there is no documentation that shows the Veteran was specifically treated for a left shoulder condition while he was in service. Indeed, the Veteran was not treated for a left shoulder disorder until 2003, 25 years after his discharge from service. Nevertheless, the examiner stated that if the Veteran sustained a left shoulder injury in service, it was not persistent or chronic. Therefore, absent evidence of a left shoulder disorder in service and the years following, the examiner stated there was no way to substantiate the claim that the Veteran incurred a left shoulder disorder in service. Accordingly, the VA examiner could not make an association between the current disorder and the Veteran's military service. In this case, it appears the VA examiner has solely relied on the absence of in-service treatment to find there is no nexus between the Veteran's current disorder and his military service. The Court has held that, in such instances where an opinion is based solely on the absence of in-service treatment, the opinion is inadequate. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the opinion does not comply with the previous remand directives. In the February 2020 remand, the Board instructed the RO to obtain a medical opinion that included comments by the examiner related to the Veteran's assertions. While the March 2020 examiner provided an opinion, he did not address the Veteran's assertions and the lay statements of record that show the Veteran had a fall from a pier in 1976 that resulted in his disabilities, including his left shoulder disorder. Stegall v. West, 11 Vet. App. 268 (1998). Notably, in the March 2020 medical opinion for the Veteran's now service-connected traumatic brain injury, the examiner relied on lay statements and detailed accounts of the event that occurred in 1976 to provide a positive nexus opinion. For these reasons, remand is necessary for an additional opinion to determine the nature and etiology of the Veteran's claimed left shoulder disorder. In March 2020, the Veteran was also afforded a VA examination in connection with his claim for a scar on his nose bridge. The examiner opined that it is less likely than not the condition was incurred in or caused by his military service. He indicated that there was no documentation that showed the Veteran was treated for or diagnosed with a scar on the nasal bridge while in service. The examiner further noted that even if the Veteran sustained a laceration in service there is no evidence that it would have resulted in residual scarring. Further, he discusses the probability of the Veteran injuring himself only once in service (1978), rather than twice (1976 and 1978) as reported. Given this theory, the VA examiner stated that the separation examination report would cite a laceration on the nasal bridge. The Board notes that the Veteran's Certificate of Discharge From Active Duty indicates that he had 12 months of foreign and/or sea service; that the Veteran's military service record documents his acknowledgement of receipt of orders transferring him overseas to 3rd Marine Division in March 1976; that in May 1976, he attended indoctrination on the Status of Forces Agreement regarding Okinawa; and that he was informed in December 1976 that he was to embark aboard the USS OKINAWA in December 1976. The Board further notes that the Veteran's military service records show that the incidents that led up to his brig physical in August 1978 were for absences while he was stationed in California. This evidence may support a contention that the 1976 and 1978 incidents were not the same. The Board finds that the March 2020 opinion regarding the Veteran's scar is inadequate as it is relying solely on the absence of a disorder in service. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, it is speculative in nature and based on assumed facts. The VA examiner has taken the documented assertions and statements to form his own scenario about the events that happened. He then used that scenario to form the second part of his opinion. Therefore, the VA examiner discounted the Veteran's assertions as well as the other lay statements of records to form his opinion without explanation why such evidence should be discounted. Remand is necessary for an additional VA examination to determine the nature and etiology of the Veteran's nasal bridge scar. The matters are REMANDED for the following action: 1. Any outstanding VA medical records should be obtained and associated with the claims file. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any left shoulder disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that any current left shoulder disorder is related to his military service, to include any symptomatology or injury therein. The examiner should consider and address the two incidents in service that the Veteran claims caused his disorder. Moreover, the lay statements of record should be considered. The examiner must not rely solely on the absence of diagnosis or treatment in service, or the lack of medical documentation, as the basis for a negative opinion. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any scar on the nasal/nose bridge that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that any current nasal scar is related to his military service, to include any symptomatology or injury therein. The examiner should consider and address the two incidents in service that the Veteran claims caused his disorder. Moreover, he or she should also consider the lay statement that the Veteran fell and hit his head on the rocks and when he was found he was face down. The examiner must not rely solely on the absence of diagnosis or treatment in service, or the lack of medical documentation, as the basis for a negative opinion. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing these actions, the AOJ should conduct any other development as may be indicated. Ann K. Minami Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.