Citation Nr: 18148210 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 17-53 971 DATE: November 7, 2018 REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the thoracolumbar spine is remanded. REASONS FOR REMAND The Veteran submitted a March 2017 notice of disagreement with the initial ratings assigned for back and right knee disabilities in an August 2016 rating decision. The Veteran also indicated he disagreed with a September 2016 rating decisions denial of service connection for a left shoulder disability. September 2017 Statements of the Case (SOC) were issued as to those claims. The Veteran submitted October 2017 VA Form 9s indicating he wished to continue his appeal only as to the issues of the initial rating for his back disability and the denial of service connection for a left shoulder disability. Therefore, the appeal as to his claim for an increased initial rating for his right knee disability was not perfected and therefore not before the Board at this time. 1. Entitlement to service connection for a left shoulder disability is remanded. The Veteran is seeking entitlement to service connection for a left shoulder disability. In response to the claim a September 2016 VA opinion was obtained. The examiner concluded that the Veteran’s left shoulder disability clearly and unmistakably existed prior to his active service and was not aggravated beyond its natural progression by his active service. The opinion provider explained there was no evidence of a left shoulder injury during the Veteran’s active service or record of complaints of shoulder pain and therefore there was no evidence of aggravation. The September 2016 VA opinion is inadequate. The examiner indicated the Veteran’s left shoulder disability pre-existed his active service but a rationale was not provided for this conclusion. The Veteran’s January 1995 enlistment examination notes the Veteran had a previous left shoulder injury but does not include any notation of a preexisting diagnosed left shoulder disability. X-ray studies conducted at that time were negative. The notation of a history of previous left shoulder injury noted on the January 1995 enlistment examination is insufficient alone to establish that the Veteran had a diagnosed disability which clearly and unmistakably preexisted his active service. Moreover, the examiner seemingly impermissibly relied solely on the fact that the Veteran’s service treatment records (STRs) were absent complaints of left shoulder pain when concluding no aggravation had occurred. The Veteran provided an October 2017 VA Form 9 indicating he was discouraged from seeking medical attention during his active service so he did not mention his shoulder pain. Moreover, a February 2012 STR specifically noted that the Veteran hurt his left shoulder during his active service. As such, a new VA opinion must be obtained on remand which adequately addresses the evidence of record. 2. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the thoracolumbar spine is remanded. The Veteran is seeking an increased initial rating for his service-connected back disability. The Veteran was provided with a January 2016 VA examination, but that examination is inadequate. The examiner concluded that pain did not cause functional loss and that the Veteran did not have additional loss of range of motion following repetitive use over time. However, the examiner later stated pain significantly limited functional ability with repeated use over time. These statements seemingly contradict themselves. Moreover, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016). The examination does not contain passive range of motion measurements. As such, a new VA examination must be obtained on remand which adequately addresses the rating criteria. Moreover, the Veteran continues to receive treatment at a VA medical center. As such, any and all outstanding VA treatment records must be obtained on remand. The matters are REMANDED for the following action: 1. Attempt to obtain and associate with the claims file any and all outstanding VA treatment records. 2. After completion of the above, obtain an addendum opinion from an appropriate clinician regarding the following: (a) Does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran had a left shoulder disability that existed prior to his entry into active duty? Please identify any such evidence with specificity (b) If the answer is yes, does the evidence of record clearly and unmistakably show that the preexisting left shoulder disability was not aggravated by service or that any increase in disability was due to the natural progression of the disability? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms beyond its natural progression. Please identify any such evidence with specificity. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the Veteran’s left shoulder disability is etiologically related to his active service. The examiner should consider and discuss as necessary the Veteran’s lay statements indicating he was discouraged from seeking medical attention during his active service for his left shoulder pain caused by the physical nature of service and a February 2012 STR noting an in-service left shoulder injury. The examiner should set forth a complete rationale for all findings and conclusions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Schedule the Veteran for an examination of the current severity of his back disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s back disability alone and discuss the effect of the Veteran’s back disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel