Citation Nr: 20075813 Decision Date: 11/27/20 Archive Date: 11/27/20 DOCKET NO. 20-02 299 DATE: November 27, 2020 REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran had active duty from July 1957 to July 1959. This matter is on appeal form a September 2017 rating decision. The Veteran had a hearing before the undersigned Veterans Law Judge in November 2020. The claims for service connection for: (1) a left shoulder disorder and (2) a low back disorder are remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for either the left shoulder or low back because no VA examiner has opined whether either disorder developed due to service. Although the Veteran has provided private medical opinions in September 2019, such opinions are inadquate in providing rationale and do not consider all evidence of record, such as the February 2018 finding of congenital stenosis by Dr. M.P. In this regard, congenital or developmental “defects” automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9. Defects are defined as “structural or inherent abnormalities or conditions which are more or less stationary in nature.” VAOPGCPREC 82-90 (July 18, 1990). VA’s Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. VAOPGCPREC 82-90, VAOPGCPREC 67-90. A defect differs from a disease in that a defect is “more or less stationary in nature”, while a disease is “capable of improving or deteriorating.” However, a congenital or developmental defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. As this matter is being remanded, the Agency of Original Jurisdiction (AOJ) should verify whether there are any outstanding VA medical records (if they exist), as well as, any outstanding private medical records, such as from Dr. D. reported in the October 2015 new patient record indicating referral for treatment from Dr. D. The matters are REMANDED for the following actions: 1. The AOJ should verify whether there are any outstanding VA medical records (if they exist). 2. Ask the Veteran to complete a VA Form 21-4142 for Dr. D. and any other relevant private medical providers. Make two requests for the authorized records from Dr. D. and any other identified providers, unless it is clear after the first request that a second request would be futile. 3. After the above development has been accomplished, obtain a VA medical opinion regarding the Veteran’s claimed (a) left shoulder disorder and (b) low back disorder. Only if a physical examination is deemed necessary to form an opinion, schedule the Veteran for a VA examination for the claimed disorders. The examiner must review the claims file, to include the private September 2017 medical opinions and lay evidence of record. The examiner is asked to provide a response to the following: Is a (a) left shoulder disorder and/or (b) low back disorder at least as likely as not related to service, including reported injury from loading pontoons, such as reported in a September 2017 lay statement and November 2020 Board hearing testimony. If a congenital disorder is found (such as the February 2018 diagnosis of congenital stenosis by Dr. M.P.): (a) the examiner should state whether it constitutes a congenital or developmental defect or a congenital disease (per VAOPGCPREC 82-90, in general, a congenital abnormality that is subject to improvement or deterioration is considered a disease – see additional discussion of congenital disorders in the Remand above). (i) If it is considered a defect, was there additional disability due to disease or injury superimposed upon such defect during service? If so, please identify the additional disability (please note if the additional disability is also a current disability). (ii) If it is a congenital disease: (A) Is there clear and unmistakable evidence that the pre-existing disease did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? (B) If there was an increase in severity the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. Provide a full explanation to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.