Citation Nr: 1340316 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-21 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. These matters come before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. On his Form 9, the Veteran indicated that he wished to have a hearing before a Veterans Law Judge at a local VA office; however, in a statement submitted to the RO in October 2011, the Veteran withdrew his request. 38 C.F.R. § 20.704(e) (2013). 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 has contended that he has shoulder disabilities that are related to service. Service treatment records reflect that, on his induction Report of Medical History, the Veteran reported that he had a painful or trick shoulder. No further information was given, and his induction Report of Medical Examination reflected normal upper extremities. Service treatment records contain a letter from the Veteran's private physician, indicating the he treated the Veteran prior to active duty for neck pains extending into the right scapula. The Veteran's separation Report of Medical History shows that he reported that he had a painful or trick shoulder, and his separation Report of Medical Examination reflected normal upper extremities. Private medical records show that the Veteran has been diagnosed with bursitis of the right shoulder, and "some frozen shoulder type symptoms" on the right side, although it was noted that there could be some pathology in the rotator cuff. As such, the evidence reflects that the Veteran had a current right shoulder disorder. McLain v. Nicholson, 21 Vet. App. 319 (2007). When no preexisting condition is noted upon examination for entry into service, a Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304 (2013). Therefore, to rebut the presumption of soundness under 38 U.S.C.A. § 1111, there must be clear and unmistakable evidence that (1) a Veteran' s disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id.; see also VAOPGCPREC 3-2003. It is unclear from the service treatment records whether this records show that there is clear and unmistakable evidence that a right shoulder disability preexisted service and was not aggravated by service. As such, the Board finds that the Veteran should be provided with a VA examination to determine whether he has a preexisting right shoulder disability that was aggravated by service. In addition, in his May 2010, Form 9, the Veteran indicated that he felt his right shoulder disability was secondary to his service-connected neck disability. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board finds that the Veteran an opinion should be obtained as to whether the Veteran has a right shoulder disability that is secondary to his service-connected neck disability. The Veteran filed a notice of disagreement, in July 2009, noting that he did not agree with the RO's July 2009 rating decision with regard to the denial of entitlement to service connection for a left shoulder disorder. The Veteran was provided with a statement of the case in April 2010, that listed the issue as service connection for shoulder pain/arthritis. However, this statement of the case only addresses the Veteran's claim as it applies to his right shoulder disorder. As such, the Board finds that the Veteran has not been provided with a statement of the case addressing his claim for entitlement to service connection for a left shoulder disorder. The Board is required to remand this issue for issuance of the necessary statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination, in order to determine the precise nature and etiology of his right shoulder disorder. The claims file and a copy of this Remand must be reviewed by the examiner and that review should be indicated in the examination report. All appropriate tests and studies shall be conducted. If a right shoulder disorder is identified, the examiner is requested to provide a medical opinion indicating: a) whether the evidence of record clearly and unmistakably shows that the Veteran had such disorder that existed prior to his entry into active service (reference is made to the letter from the Veteran's private physician that he had treated the Veteran prior to service for pain in the right shoulder); b) whether the evidence of record clearly and unmistakably show that (i) any pre-existing right shoulder disorder was not aggravated by active service, or that (ii) any increase in disability was due to the natural progression of such disease (please identify any such evidence with specificity); c) if the answer to either part of (b) is no, whether is it at least as likely as not that any currently diagnosed right shoulder disorder had its onset during the Veteran's period of active service; d) whether it is at least as likely as not (50 percent probability or more) that the Veteran's right shoulder disorder was caused (in whole or in part) by his service-connected cervical spine disorder e) whether it is at least as likely as not (50 percent probability or more) that the Veteran's current right shoulder disorder was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected cervical spine disorder If the Veteran's current right shoulder disorder was aggravated by his service-connected cervical spine disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a right shoulder disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 2. The AOJ should issue a statement of the case as to the issue of entitlement to service connection for a left shoulder disorder. This issue should not be certified to the Board unless a sufficient substantive appeal is submitted. 3. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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). _________________________________________________ J.A. MARKEY 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) (2013).