Citation Nr: 21000334 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-34 267 DATE: January 5, 2021 REMANDED Entitlement to service connection for torn tendon left shoulder is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1966 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in September 2019 the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. The Veteran claims entitlement to service connection for torn tendon left shoulder. Although the Board sincerely regrets any delay this may cause, further development is necessary prior to adjudicating this claim. The Veteran was afforded a VA examination to determine the nature and etiology of his torn tendon left shoulder in May 2017. The VA examiner opined that the Veteran’s left shoulder condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner noted that the Veteran’s service treatment records and separation examination were silent for any left shoulder injury or pain. The examiner further noted that when the Veteran was treated for shoulder pain in 2013 that he reported no trauma or specific injury regarding his left shoulder. Although service treatment records do not show any complaints of or treatment for left shoulder pain/injury, the Veteran has provided lay statements that his left shoulder was injured during active duty service, and that he sought treatment for pain related to the injury. While the examiner correctly noted that the service treatment records did not confirm these occurrences, the absence of a diagnosis in the service treatment records may not be solely relied upon by an examiner in providing a negative opinion. Dalton v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner’s opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010). Accordingly, the Board finds that a remand is warranted for an addendum medical opinion. Additionally, the Board notes that a January 2020 primary care note reflects the Veteran’s statement that he injured his shoulder during service and that he has had “on and off” pain since that time. The treating physician noted his discussion with the Veteran that there was a “definite possibility of old injury contributing to his existing arthritis,” but that it was hard to know as he did not have access to the Veteran’s records. Given the speculative nature of this opinion, the Board finds that it does not support a grant of benefits in this case. Nevertheless, on remand the VA examiner should consider this evidence in his or her opinion. The matters are REMANDED for the following action: 1. Provide the claims file to a qualified examiner to obtain an addendum medical opinion as to the nature and etiology of the Veteran’s left shoulder disability. All pertinent evidence of record must be made available to and reviewed by the clinician. If the clinician determines that an examination is necessary, one should be scheduled. Following a review of the claims file and this remand, the examiner is asked to provide an opinion as to the following: Is it at least as likely as not (50 percent or greater probability) that that the Veteran’s left shoulder disability manifested in service or is otherwise causally or etiologically related to his military service? The examiner must indicate that the entire claims file was reviewed. A complete rationale must be provided for each opinion given. In providing the above-requested opinion, the examiner must note that the Veteran is credible as to his statements that he injured his left shoulder while trying to move a communication trailer in June 1968. Therefore, his statements in that regard should be accepted as true. See also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (a lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). The examiner should also note that an in-service diagnosis is not required for service-connection. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). The examiner should also consider the January 2020 primary care note, reflecting that there was a “definite possibility of old injury contributing to [the Veteran’s] existing arthritis,” but that it was hard to know as the examiner did not have access to the Veteran’s records. If it is less likely that the Veteran’s current left shoulder disability is related to his military service, the examiner should discuss why this is the case, with full consideration of the Veteran’s own reported history. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. (Continued on the next page)   The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity for an examination. If a VA examination proves not feasible for any reason, including the Veteran not appearing for an examination, the claims file should still be reviewed by an appropriate professional for the purpose of providing the requested opinions. 2. When the above development has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and afford the Veteran and his representative an adequate opportunity to respond, prior to returning the issue to the Board for appellate review. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.