Citation Nr: 20007181 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-59 027 DATE: January 28, 2020 REMANDED Entitlement to service connection for left shoulder disability, to include as secondary to neck disability is remanded. Entitlement to service connection for right shoulder disability, to include as secondary to neck disability is remanded. Entitlement to service connection for back condition is remanded. Entitlement to service connection for heart disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1972 to June 1977. The Veteran testified at videoconference hearing in August 2019 and transcript of the hearing is of records. During the hearing, the Veteran’s representative contended that a claim for service connection for diabetes mellitus, type II, should be in appellant status. After carefully reviewing the claims file, the Board of Veterans’ Appeals (Board) finds that there is no notice of disagreement filed since the April 2017 rating decision that denied the claim for service connection for diabetes. At the hearing, the Veteran’s representative asked for the record to be held open for 60 days, in part, to submit a copy of the notice of disagreement he claims was timely filed. However, the 60 days have expired, and a copy of the notice of disagreement has not been provided. There is a presumption of regularity under which government officials—the Regional Office (RO) in this case— performed their duties—in this particular case, their duty to file documents received from the Veteran—correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381 (2005); Woods v. Gober, 14 Vet. App. 214, 220-21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO). Absent clear evidence showing that the RO failed to file a notice of disagreement sent by the Veteran, the Board finds that the presumption of regularity is not rebutted. Therefore, the Board finds that it does not have jurisdiction to review the claim for service connection for diabetes as there was no notice of disagreement with that specific issue filed. See Percy v. Shinseki, 23 Vet. App. 37 (2009). In addition, review of the record reflects that the Veteran has filed a claim for a total disability based on individual unemployability (TDIU) in June 2018. The Veteran’s representative contends that a claim for TDIU is in appellate status as intertwined with the claims for service connection. As there are no increased rating claims in appellate status, there is no jurisdiction of a TDIU claim. Rice v. Shinseki, 22 Vet. App. 447, 456 (2009). In the regard, the Board has considered the attorney-representative’s argument but findings it unpersuasive. An August 2019 private medical opinion indicates that the Veteran’s bilateral shoulder disability can possibly be related to his service-connected neck disability. Therefore, the Board has taken an expansive view of the Veteran’s claim pursuant to Clemons and recharacterized the issue as shown above. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. Entitlement to service connection for left shoulder disability, to include as secondary to neck disability is remanded. 2. Entitlement to service connection for right shoulder disability, to include as secondary to neck disability is remanded. The Veteran’s representative submitted a private medical opinion in support of the claim for bilateral shoulder disability in October 2019, where the examiner concluded that “the Veteran’s bilateral shoulder strain is more likely than not secondary to cervical osteoarthritis.” The examiner, however, did not indicate that he had examined the Veteran, nor provide a basis for diagnosing bilateral shoulder strain. The medical records the examiner reviewed do not specifically indicate that the Veteran has bilateral shoulder strains. For this reason, the Board finds that this opinion is not adequate to adjudicate the claim and remand is necessary before the claims can be adjudicated. 3. Entitlement to service connection for back disability is remanded. 4. Entitlement to service connection for heart disability is remanded. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for back and heart disability because no VA examiner has opined whether these conditions are related to the Veteran’s military sevrice. Notably, the Veteran’s representative submitted a medical opinion in October 2019 and inicated that said opinion is favorble with respect to the back disability claim in the cover letter. Review of the opinion, however, shows that the examiner did not address the back disability. Therefore, a remand to obtain an examination is necessary before the claim can be adjudicated. The matters are REMANDED for the following action: 1. Update VA treatment records. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral shoulder disability. The examiner should review the claims file in its entirety and answer the following questions: Is the Veteran’s bilateral shoulder disability at least as likely as not related to an in-service injury, event, or disease in service? In the alternative, is the Veteran’s bilateral shoulder disability at least as likely as not (50 percent or greater probability) caused by his neck disability; and Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral shoulder disability have been aggravated by his neck disability? The examiner should consider and comment on the impact, if any, the trauma to the neck the Veteran experienced in service has on his current bilateral shoulder disability. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. After completion of directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of back disability. After reviewing the claims folder in its entirety, the examiner should answer the following question: Is the Veteran’s back condition at least as likely as not (50 percent or greater probability) etiologically related to his military service? If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. After completion of directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of heart disability. After reviewing the claims folder in its entirety, the examiner should answer the following question: Is the Veteran’s heart disability at least as likely as not (50 percent or greater probability) etiologically related to his military service? The examiner should consider and comment on the Veteran’s May 1977 surgery while he was in service. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Solomon 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.