Citation Nr: 23023482 Decision Date: 04/24/23 Archive Date: 04/24/23 DOCKET NO. 16-43 466 DATE: April 24, 2023 REMANDED Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1976 to February 1979. The Veteran passed away in November 2019, and his surviving spouse has been substituted as the Appellant in his appeal. The Appellant had a hearing before the undersigned in July 2021. This matter was previously remanded by the Board in January 2023. The case has been returned to the Board at this time for further appellate review. 1. Entitlement to service connection for a right shoulder disorder is remanded. 2. Entitlement to service connection for a left shoulder disorder is remanded. 3. Entitlement to service connection for a back disorder is remanded. This matter was remanded in January 2023 to obtain opinions regarding the etiology of the Veteran's back and shoulder disabilities, as the Board determined that there was insufficient information to adjudicate the claims on appeal. In this regard, the VA clinician was directed, for purposes of providing the requested opinions, to assume that the description of the Veteran's in-service duties contained in a September 2019 private medical opinion was accurate. The September 2019 private medical opinion reflects that the Veteran's in-service duties included lifting up to 150 pounds constantly for 45 days, three times per year. Opinions were obtained in February 2023 which the Board finds are inadequate for the following reasons. First, the VA clinician impermissibly dismissed the Veteran's reports of lumbar and shoulder pain in service solely because they were not documented in contemporaneous medical treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). Second, it appears as though the opinions may be based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Specifically, the VA clinician noted the length of time between the Veteran's separation from service and the time he was diagnosed with shoulder and back disabilities and then stated that, "given the [Veteran] only served about 2.5 yrs on active duty, but has records of lifting up to 150 pounds daily for 45 days in a row (3x a year), working in a food plant, and working as a custodian for 30 years, it is less likely than not" that the Veteran's shoulder and back disabilities are related to his service. The VA clinician later noted that the September 2019 private medical opinion "did not take into account [the Veteran's] work history which featured lifting 150 pounds of weight consistently for 45 days in a row, but also for 3 periods during the year ([the Veteran] also worked in a food plant as well as a custodian for 30 years)." Although it is not entirely clear, it appears as though the VA clinician may be stating that the Veteran lifted up to 150 pounds constantly for 45 days, three times per year after his time in service. However, as reflected in the September 2019 private medical opinion and as stated above, this occurred during the Veteran's time in service. In sum, because it is unclear to the Board whether the February 2023 VA opinions were based on an inaccurate factual premise, the Board finds that they are inadequate. For these reasons, remand is warranted for new VA opinions. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's shoulder and back disorders. Following review of the claims file, the clinician should respond to the following: a) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left and right shoulder disabilities were incurred in or caused by an in-service injury, event, or illness? Please explain why or why not, specifically considering and discussing 1) the findings of the orthopedic surgeon who issued an opinion in September 2019; 2) the Veteran's post-service work history; 3) the Veteran's assertion that his shoulder pain started in service, and 4) the Veteran's assertion that exposure to cold conditions during service caused his shoulder disabilities. b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's back disability was incurred in or caused by an in-service injury, event, or illness? Please explain why or why not, specifically considering and discussing 1) the findings of the orthopedic surgeon who issued an opinion in September 2019; 2) the Veteran's post-service work history; 3) the Veteran's assertion that his back pain started in service, and 4) the Veteran's assertion that exposure to cold conditions during service caused his back disability. For purposes of issuing these opinions, the clinician should assume that the description of the Veteran's in-service duties in the September 2019 private medical opinion is accurate, including that the Veteran lifted up to 150 pounds constantly for 45 days, three times per year. The clinician should include a complete rationale for the opinions provided. If the clinician cannot provide the requested opinions without resorting to speculation, they should expressly indicate this and state why it is so. L. STEPANICK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elias, Mariana 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.