Veteranclaims’s Blog

August 1, 2020

Single Judge Application; Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Fears v. Wilkie, 31 Vet.App. 308, 314 (2019); because the veteran’s account of his history of pain post-dated and was not reflected in the VA examiner’s opinion, the Court must vacate;

Filed under: Uncategorized — Tags: — veteranclaims @ 12:24 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-4368
KELVIN GUINYARD, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Kelvin Guinyard challenges an April 2019 Board decision denying service
connection for a right shoulder disability.1 He principally argues that the Board relied on an inadequate VA examination and opinion because the examiner relied on an incomplete medical
history—specifically that the examiner did not know that Mr. Guinyard’s right shoulder pain
persisted from the date he injured it in service. Here, because the veteran’s account of his history
of pain post-dated and was not reflected in the VA examiner’s opinion, the Court must vacate
for
the Board to obtain an adequate opinion addressing Mr. Guinyard’s assertion.
Mr. Guinyard served in the Army from August 1983 to August 1996. In 1991, Mr.
Guinyard suffered a right rotator cuff injury during a football game. X-rays showed no
abnormalities. Service treatment records reflected that he was instructed to rest for two days and
take prescription pain medications. He was directed to return in two weeks. There were no followup
records. On separation, medical personnel found that he had normal upper extremities and that
he had no physical defects.
1 The Board remanded a service-connection claim for a respiratory disorder. As the Court’s jurisdiction is
premised on final decisions, and remands are not final decisions, it lacks jurisdiction over that claim. See Foreman v.
Shulkin, 29 Vet.App. 146, 147 n.1 (2018).
2
Nearly two decades later, Mr. Guinyard sought service connection for a rotator cuff injury.
VA obtained an examination in August 2011 and an addendum opinion in July 2012. The examiner
observed pain, stiffness, and limited motion in the right shoulder, and diagnosed right rotator cuff
syndrome. Although he acknowledged Mr. Guinyard’s belief that his condition was related to his
in-service injury, the examiner opined that it was less likely than not related to service. He found
that the in-service injury was transient as the separation examination was normal for the upper
extremities, the veteran did not seek follow-up for the injury in service, and there were no
complaints or treatment for the condition until 2010.
VA denied the claim. Mr. Guinyard disagreed with this determination, arguing that he did
not seek treatment until 2010 “because [his right shoulder] did not become an issue until that time.”
R. at 1816. VA continued to deny the claim, and the veteran pursued the matter to the Board.
During a January 2019 Board hearing, Mr. Guinyard reported for the first time that his right
shoulder pain began in and persisted after service and that he had no intervening injuries between
the in-service incident and the date he filed his claim that would explain the source of his pain. VA
treatment records also reflected the veteran’s assertion that his pain began in and persisted after
service. R. at 2226.
In the decision on appeal, the Board denied the claim. It found that the veteran was not
competent to provide an etiology opinion and that the VA examination and opinion were the most
probative evidence of record. The veteran appealed.
Mr. Guinyard argues that the VA examination and opinion were inadequate because the
examiner did not have a complete picture of the veteran’s medical history. He argues that, because
he did not assert that he had persistent right shoulder pain after the in-service injury until after the
VA examination, the examiner lacked key information for evaluating his condition.
An examination is adequate when it is based on a review of the veteran’s medical history
and provides enough information for the Board to issue a fully informed decision. Sharp v. Shulkin,
29 Vet.App. 26, 31 (2017). The Board’s adequacy determinations are reviewed for clear error. Id.
The Court cannot disturb an adequacy finding unless it lacks a plausible basis in the record. See Fears v. Wilkie, 31 Vet.App. 308, 314 (2019).
Here, the examiner acknowledged Mr. Guinyard’s theory that his then-current shoulder
disability was caused by the in-service football injury. He found that the in-service injury was transient for three reasons. First, there was no follow-up for the condition; second, Mr. Guinyard’s
3
upper extremities were normal on separation; and, third, the veteran did not seek treatment for this condition for about two decades after service. Nowhere in the examination report or opinion did the examiner indicate that he knew of or accepted Mr. Guinyard’s assertion that he experienced gradually worsening shoulder pain continuously following his in-service injury. For this reason, the examination report was inadequate.
An examination must be based on the veteran’s complete medical history. Mr. Guinyard
did not claim that his injury caused chronic, persistent pain until after the VA examination and opinion. Furthermore, prejudicial error analysis is not proper here. Whether the veteran’s assertion, had it been known by the examiner, would have affected his etiology opinion is a medical determination outside the Court’s competence to ascertain. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). On remand, the Board must obtain an additional examination or addendum
opinion addressing Mr. Guinyard’s assertion of chronic pain.
Mr. Guinyard makes additional reasons or bases arguments in his brief. On remand, the
Board must reassess the evidence and provide a new statement of reasons or bases explaining its
determinations. See Best v. Principi, 15 Vet.App. 18, 20 (2001). The Board should take note of the
favorable evidence Mr. Guinyard cites in his briefs and address it, if necessary, in its next decision
on this matter.
Accordingly, the Court VACATES the April 17, 2019, Board decision and REMANDS for
readjudication consistent with this decision.
DATED: July 28, 2020
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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