Citation Nr: 1335383 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-50 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had periods of active duty from September 1987 to February 1988, from February to July 1991, from October 2001 to September 2002, and from February 2003 to February 2004. He also served in the Air Force Reserves, retiring in February 2009. In August 2012, in support of his claim, the Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (VLJ) of the Board. 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 The Veteran asserts that his current shoulder disability, status post-operative superior labral anterior to posterior tear acromioclavicular joint arthritis and impingement had its onset during a period of military service in 2003. The Veteran's service treatment records (STRs) show that in December 2003 he Veteran received treatment for a 1 week history of right shoulder pain without specific injury. There was tenderness at the right subacromial bursa. The diagnosis was right subacromial bursitis. A March 2004 medical entry for an unrelated problem reported that the Veteran's shoulder pain had been resolved for 2 months. In December 2007, an MRI report indicated that the Veteran had reported right shoulder pain. It was reported that there was a tear of the posterior labrum with a paralabral cyst, and acromioclavicular degenerative joint disease. The RO requested further medical evidence to determine whether the Veteran's right shoulder disorder was related to his military service. In a September 2008 VA medical examination, the examiner reported that the claims folder was reviewed. The examiner opined that the Veteran's right shoulder disorders were less likely as not caused by or a result of the shoulder pain for which he was treated in service. It was stated that the Veteran had denied any shoulder injury in service, and he did not remember the onset of his shoulder condition. It was mentioned that the Veteran was an aircraft mechanic and he easily could have caused the overuse injury outside of his job in the Reserves and active duty. The Veteran was only seen on one occasion for the right shoulder in December 2003, and the lack of evidence it was less likely as not that the right shoulder condition was due to his military service. Submitted in February 2009 was an Air Force Reserve line of duty determination dated in November 2008, that includes named military officials, and a medical officer. Their signatures are not included. The document indicates that in December 2003, the Veteran initially reported shoulder discomfort. That he initially injured his right shoulder in 2003 and had a tear of the posterior labrum in the shoulder. This Air Force Reserve document, seemingly based on medical findings, contradicts the September 2008 VA examiners' medical opinion regarding whether the Veteran's right shoulder disability is related to his military service. The Board has the responsibility to weigh and assess the evidence. However, VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As a result of this conflicting evidence, the Board is of the opinion that additional medical information would be helpful here. In addition, according to the Veteran's service personnel records, it is apparent that he had years of both active and inactive duty for training (ACDUTRA and INACDUTRA) in the Air Force Reserves. The term "active military, naval, or air service" includes active duty (AD) and any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or an injury incurred in or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, though not disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24), 106; 38 C.F.R. § 3.6(a). Those periods of the Veteran's ACDUTRA or INACDUTRA have not been verified and it is not certain if any additional records from those periods are available which may impact the claim. Accordingly, the case is REMANDED for the following action: 1. Attempt to verify the Veteran's periods of ACDUTRA and INACDUTRA and request any additional STRs from his Air Force Reserve service that have not previously been associated with the claims file by contacting any appropriate source. The AMC/RO is reminded that it should continue efforts to verify the Veteran's service information and to obtain any outstanding STRs until either the information is received or until it receives specific information that the information sought does not exist or that further efforts to obtain it would be futile. 38 C.F.R. § 3.159(c)(2) and (c)(3). All records and/or responses received should be associated with the claims file and, if necessary, the Veteran appropriately notified if unable to obtain additional records. 38 C.F.R. § 3.159(e)(1). 2. Afford the Veteran a VA examination to determine the etiology of his right shoulder disorder and if it is related to his military service, including any ACDUTRA or INACDUTRA. All indicated tests and studies are to be performed. In conjunction with the examination, the claims folder must be made available to the examiner for review of the relevant history. A notation to the effect that this record review took place should be included in the report of the examiner. Following examination of the Veteran and a review of the record, the examiner should provide an opinion concerning the likelihood (very likely, as likely as not, or unlikely) the right shoulder disorder was incurred or aggravated as a result of the Veteran's active duty military service, ACDUTRA, or is related to an injury, though not disease, incurred or aggravated during his INACDUTRA. In making this necessary determination, this examiner must consider the finding of February 2009 was an Air Force Reserve line of duty determination where it was stated that the Veteran injured his shoulder in 2003 in the line of duty. If the examiner determines the Veteran has had a chronic right shoulder disorder, specifically degenerative joint disease, since his military service ending in February 2004, he or she should opine as to whether this disorder, particularly degenerative joint disease manifested to a compensable degree with the one-year presumptive period following the Veteran's discharge from AD service in February 2004. This presumptive period only applies to his service on AD, not ACDUTRA and INACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40 (2010) and Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. The designated examiner should additionally consider that in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's STRs to provide a negative opinion. See too, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), where the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), recently held that continuity of symptomatology only can be used to establish service connection for the conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as arthritis or degenerative joint disease. 3. Then readjudicate the claim in light of this and all other additional evidence. If the claim is not granted to the Veteran's satisfaction, send him and his representative another supplemental SOC (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. 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 are 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). _________________________________________________ KELLI A. KORDICH Acting 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).