Citation Nr: 1314201 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 10-45 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for bilateral shoulder tendonitis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran served on active duty during the Gulf War Era, from June 1992 to August 1992 and from July 1993 to January 1999, and he had subsequent service in the New Hampshire National Guard and Army Reserves, with presumed periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) Manchester, New Hampshire. In June 2010, the Veteran testified at a local hearing before a Decision Review Officer (DRO), and in July 2011, the Veteran testified via videoconference at a Board hearing held before the undersigned Veterans Law Judge in Washington, D.C. A copy of each transcript is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Regrettably, a remand is necessary for further evidentiary development of the claim for service connection for a bilateral shoulder disorder. The Veteran contends that he has bilateral tendonitis of the shoulders was incurred in 2006 while preparing for the Army physical fitness test, required for Army reserve service. See July 2011 Hearing Transcript (HT) at 3. The Veteran additionally describes developing "tendonitis again in both shoulders, with the left shoulder being much more severe than the right [emphasis added]," two years following the initial development of the bilateral shoulder disorder. Id A service connection benefit may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, for residuals of injury incurred or aggravated during INACDUTRA, or for residuals of an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002); 38 C.F.R. § 3.6 (2012). The presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 do not apply in the absence of the appellant securing Veteran status for the particular period in question. Biggins v. Derwinski, 1 Vet. App. 474 (1991). Also, a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). It is the Secretary's burden to rebut the presumption of in-service aggravation. See Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228, (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Additionally, silence of the record on this point may not be taken as indication of no aggravation. An opinion must be provided. See Verdon v. Brown, 8 Vet. App. 529; Wisch v. Brown, 8 Vet. App. 139 (1995). In this case, the Veteran reported a history of tendonitis in the left shoulder, while requesting a treatment appointment, at a VAMC in April 2006. See April 2006 VA Medical Records. At the April 2006 treatment visit, the Veteran again reported a history of tendonitis in the left shoulder. Id However, the Veteran also indicated that prior physicial therapy treatments "improved" his tendonitis, but symptoms seemed to be returning. Id. The claim file does not contain the Veteran's personnel records to verify the Veteran's dates of ACDUTRA and INACDUTRA and no medical opinion was obtained regarding whether the Veteran's bilateral shoulder disorder was aggravated or incurred during a period of ACDUTRA and INACDUTRA. However, the Veteran's claim file contains February 2007 and May 2007 Performance Profiles which exempt the Veteran from performing pushups, upper body weight training, and a 2 mile run. See May 2007 Performance Profile. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103 A; 38 C.F.R. § 3.159. The Board finds that further development is necessary. Accordingly, the case is REMANDED for the following action: 1. Verify the Veteran's periods of ACDUTRA and INACDUTRA service from January 1999 to present date. Obtain all of the Veteran's Reserve STRs. 2. After obtaining the appropriate release of information forms where necessary, procure records of post-service left shoulder that the Veteran has received. The Board is particularly interested in records of such treatment that the Veteran may have received from the White River Junction VAMC in New Hampshire since July 2010. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports and records should be associated with the claims folder. 3. Then, afford the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed shoulder disorder that he may have. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. a notation to the effect that this review has taken place should be made in the evaluation report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms, including when the onset of symptoms occurred, as observed by him and others since service, review the record, and offer opinions as to the following questions: a. Did the Veteran have a diagnosed left shoulder disorder that pre-existed his 2006 periods of ACDUTRA? If yes, the examiner must cite to the evidence of record to support that conclusion. b. For each diagnosed bilateral shoulder disorder opined to have pre-existed the Veteran's 2006 periods of ACDUTRA, the examiner should then opine as to whether any pre-existing left shoulder disorder underwent a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disease? c. For each diagnosed left shoulder disorder opined to have not pre-existed the Veteran's 2006 periods of ACDUTRA, whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that such disorder shown on examination had its clinical onset during the any 2006 periods of ACDUTRA or is otherwise related to such service. A complete rationale should be given for all opinions and conclusions expressed. if the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in va practices. 4. Ensure that the examination report complies with (answer the questions posed in) this Remand. 5. Then, readjudicate the issue of entitlement to service connection for a bilateral shoulder disorder. If the benefit remains denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).