Citation Nr: 18108317 Decision Date: 06/05/18 Archive Date: 06/04/18 DOCKET NO. 14-25 008 DATE: June 5, 2018 ORDER Service connection for bilateral shoulder degenerative joint disease (DJD) acromioclavicular joints and glenoid labral tears, status post right arthroscopy (bilateral shoulder disability) is denied. REMANDED The issue of service connection for migraines, to include cluster headaches is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s bilateral shoulder disability is related to his active service. CONCLUSION OF LAW The criteria for service connection for a bilateral shoulder disability have not been met. 38 U.S.C. §§ 1110, 1111, 1153 (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1982 to April 1988, and from August 1990 to June 1991. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt lake City, Utah. In January 2017, the Board remanded the case to the RO for further evidentiary development, to include providing an addendum opinion for each disability. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). The Veteran asserts that he is entitled to service connection for a bilateral shoulder disability. See July 2014 Form VA 9 Appeal to the Board of Veterans’ Appeals. The Veteran’s service treatment records (STRs) reflect that he had a pre-service injury in which he dislocated his right shoulder in October 1980. See January 1982 Report of Medical History for Enlistment into Service. No other shoulder injuries were noted in all available STRs, despite notations of other in-service injuries and/or illnesses. A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111 (West 2012); 38 C.F.R. § 3.304(b) (2017). Here, despite his history of a shoulder injury, no abnormalities of the shoulder were noted in his enlistment examination, and a pre-induction examiner determined that the Veteran was fit for duty. See January 1982 and October 1988 Report of Medical Examination. As such, the Board finds that the Veteran was in sound condition when examined, accepted and enrolled into service. Even so, after a review of all evidence of record, the Board also finds that the preponderance of the evidence is against a finding of service connection for a bilateral shoulder disability. Although the Veteran asserted that he wore combat loads and special body armor, which caused pain in both of his shoulders, see Form VA 21-526 Veteran’s Application for Compensation, there is no objective evidence of any shoulder injury or disability until at least 10 years after his separation from service. Rather, the service records do not show any injury to the shoulders and upon separation, he denied any history or current complaints of shoulder problems. In addition, there is evidence of post-service injuries to the shoulders. During a VA examination, the Veteran reported bilateral labral tears in 2014; and that X-rays done at that time manifested bilateral degenerative changes. Additionally, the VA examiner clarified that the Veteran reported having a SLAP tear repair in 2009 on the right shoulder. Finally, the medical opinion evidence is against the claim. Of record is the March 2017 VA addendum opinion. In this addendum opinion, a VA examiner opined that it is less likely than not that the Veteran’s bilateral shoulder disability is related to military service. See March 2017 VA Addendum Opinion for Bilateral Shoulder Conditions. The examiner provided a clear rationale for the opinion. There is no medical opinion evidence linking the current bilateral shoulder disability to active military service. In reaching the above conclusion, the Board has considered the benefit-of-the doubt doctrine. However, as the preponderance of the evidence is against this issue, this doctrine is not applicable, and the service connection claim for bilateral shoulder disability must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 3.102 (2017). REASONS FOR REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on the remaining appealed issue of service connection for migraines, to include cluster headaches. In a March 2017 VA opinion for migraines, to include cluster headaches, the VA examiner opined appears to have confused various legal concepts pertaining to whether a disability pre-existed the Veteran’s entry onto active duty. This error is likely due to no fault of her own. It is important to recognize that legal determinations lie within the sole province of the Board and VA claims adjudicators, while medical determination lie with the province of the trained medical professionals. The Board regrets the oversight. As a result of the error, additional medical opinion is required. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his headaches and migraines, with a neurologist who has not yet evaluated the Veteran. The VA examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. A copy of this REMAND should be made available to the VA examiner. The VA examiner must undertake the following: a. Do you believe that the Veteran had a migraine-type headache disability prior to his entry onto active duty? Why do you say so? b. If you believe that a migraine-type headache disability pre-existed his entry onto active service, do you believe that such underwent a permanent increase in severity (that was not due to the natural progress of the disease) during service? Why do you say so? c. If you believe that the migraine-type headache disability did not pre-exist service, please provide an opinion as to whether it is at least as likely as not (50 percent probability or greater), that such were the result of an in-service injury, event or illness, or are otherwise related to service. (Continued on the next page)   A detailed rationale is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, the VA 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. M. TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N Pratt, Associate Counsel