Citation Nr: A19002011 Decision Date: 10/16/19 Archive Date: 10/16/19 DOCKET NO. 190509-9004 DATE: October 16, 2019 REMANDED Service connection for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1980 to July 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Following issuance of a Statement of the Case (SOC) by the Agency of Original Jurisdiction (AOJ) in April 2019, the Veteran timely filed a “Decision Review Request: Board Appeal (Notice of Disagreement)” in which he requested a Direct Review by the Board of the evidence considered by the AOJ. The record shows the Veteran has been diagnosed with a right shoulder disability. His service treatment records (STRs) show he reported shoulder pain on several occasions in September 1980. He has contended this pain never resolved and persists to the present day. The STRs and the record also show there is some question as to whether the Veteran had a right shoulder disability prior to his entrance into active duty. For example, the STRs reference right shoulder pain following an automobile accident shortly before entry and describe the in-service pain as an “exacerbation.” In this regard, the Board notes the Veteran’s July 1980 and August 1980 entry medical examination reports do not note any right shoulder condition or symptoms. The Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, a medical examiner is not free to simply ignore a veteran’s lay statements recounting symptoms or events. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In addition, the Board notes that a veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered noted. Id. The standard for rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that a veteran’s disability both pre-existed service and was not aggravated by service. Id. Once the presumption of soundness upon entry is rebutted, the government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase was due to the natural progress of the pre-existing condition. See 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims has explained that clear and unmistakable evidence means the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Vanerson v. West, 12 Vet. App. 254, 258-59 (1999). The Veteran was afforded a VA examination in November 2018 and the examiner rendered an opinion to the effect that the Veteran’s right shoulder disability was unrelated to service. Supplemental medical opinions were obtained in December 2018 and April 2019. Upon review, however, the opinions are conflicting as to whether the Veteran’s right shoulder disability pre-existed service. To the extent the opinions suggest such, they do not discuss whether the condition was “clearly and unmistakably” not aggravated by or during service. In addition, the Board observes the opinions do not discuss the Veteran’s lay statements to the effect that his right shoulder pain never resolved during or after service. Under these circumstances, the Board finds a remand is required for an additional VA examination and opinion addressing the etiology of the Veteran’s right shoulder disability. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the nature and etiology of all right shoulder disabilities present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should first identify all right shoulder disabilities present during the period of the claim. Then, with respect to each identified right shoulder disability, the examiner should state an opinion as to whether the condition clearly and unmistakably (undebatably) existed prior to the Veteran’s entrance into active duty. For each right shoulder disability which the examiner determines clearly and unmistakably pre-existed service, the examiner must state an opinion as to whether the condition clearly and unmistakably (undebatably) underwent no increase in severity (beyond its natural progression) during or as a result of service. Then, the examiner should identify all right shoulder disabilities which he or she determines did not clearly and unmistakably pre-exist service. Then, he or she must state whether it is at least as likely as not (50 percent probability or greater) that such condition(s) originated during or are otherwise etiologically related to the Veteran’s military service. In providing his or her opinions, the examiner should consider the Veteran’s statements to the effect that his right shoulder pain never resolved after his September 1980 reports of pain. The examiner must provide a rationale for any proffered opinion. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hampton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.