Citation Nr: 21070661 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-39 319 DATE: November 24, 2021 REMANDED Entitlement to service connection for right shoulder condition is remanded. REASONS FOR REMAND The Veteran served on active duty from June 18, 1962, to June 11, 1964, and June 29, 1964, to June 28, 1967. In January 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Veteran has been diagnosed with right shoulder bicipital tendonitis, rotator cuff tendonitis, rotator cuff tear, labral tear, including slap, glenohumeral joint osteoarthritis, acromioclavicular joint osteoarthritis, and degenerative arthritis. He contends that his disability is due to military service. In February 2020, the Board remanded the claims for further development. In October 2020, the Board denied the Veteran's claim for entitlement to service connection for a right shoulder disability. However, in July 2021, the United States Court of Appeals for Veterans Claims (Court) issued a Joint Motion for Remand (JMPR) vacating the Board's decision and remanding the claim for further development. The parties to the joint motion agreed that the Board erred in failing to ensure VA's duty to assist was satisfied when it relied on inadequate VA medical examination evidence. The representative noted that the Veteran was afforded a VA shoulder and arm examination in March 2020. In the examination report, the examiner opined that the Veteran's right shoulder disability was not likely to be incurred during service. The examiner noted that after an August 1966 service treatment record, there was no other description of shoulder problems following military service until 2017. However, the parties stated that the examiner did not consider that at the January 8, 2020, Board hearing where the Veteran testified that he had a problem with his shoulder when he got out of the service, and he treated it with hot water and Bengay. Additionally, the examiner did not address an impression of tendonitis of the right shoulder in an August 1966 service treatment record. The parties stated that because the examiner did not address lay statements regarding the Veteran's right shoulder or the in-service impression of tendonitis, remand was warranted. In his October 2021 statement, the Veteran through his representative reiterated the statements above, and also noted that the VA examiner did not adequately explain why the Veteran's shoulder condition was more likely caused by post-service injuries. The representative stated that the examiner opined that the Veteran's pain and disability was evaluated in December 2018 and reportedly began three months earlier when pulling on an object. The Veteran's shoulder condition worsened six weeks after when he fell out of bed. The representative stated that the examiner's opinion failed to account for the Veteran's testimony that he had gradually worsening shoulder pain since his in-service injury. The opinion also failed to account for the Veteran's 2017 treatment records documenting shoulder pain that pre-existed the 2018 injury. The representative further stated that the March 2020 VA examiner referred to the fall and strain as having taken place in 2017 rather than 2018. This confused timeline made the opinion unclear. As such, a new examination was needed. Consequently, the Board finds that a new examination is warranted to address the concerns in the 2021 JMPR and the October 2021 statement. The matter is REMANDED for the following action: 1. Obtain and associate all outstanding VA and private treatment records with the claims file. 2. Schedule a VA examination to determine the nature and etiology of the Veteran's right shoulder disability. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. Based on a review of the entire record, the examiner should: Identify any current right shoulder disability. For any diagnosed disorder, determine if it is at least as likely as not (i.e., probability of 50 percent or greater) that the diagnosed disorder had its onset in service or is in any way related to the Veteran's service, to include the August 1966 in service documentation of a possible tendinitis and/or bursitis diagnosis. The examiner should consider the Veteran's lay statements, to include his statement that he treated his right shoulder injury with bengay and hot water until the condition became so severe that he sought professional medical care from VA. Additionally, the examiner must discuss and consider any conflicting evidence or opinions of record. The supporting rationale for all opinions expressed must be provided. 3. Then, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Tara-Deen 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.