Citation Nr: 21074062 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-61 161 DATE: December 14, 2021 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1975 to September 1992. In August 2021, the Veteran testified in a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Preliminary Matter The Board notes that the issues on appeal were classified as whether new and material evidence was received to reopen a previously denied claim for right and left shoulder disabilities. However, upon further review, the Board finds that new and material evidence is not necessary in this case. The Veteran's original claim was denied in a June 2015 rating decision, in which the Regional Office (RO) found no current diagnosis of a right and/or left shoulder disability. However, in November 2016, treatment records from the Army medical center going back to 2009 were associated with the claims file. These records are considered to be from a government facility. The Board notes that the United States Court of Appeals for Veterans Claims (Court) in Turner v. Shulkin, 29 Vet. App. 207 (2018), held that for purposes of finality VA treatment records dated during the appeal period are considered in VA's possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger 38 C.F.R. § 3.156(b) if they are new and material evidence. Here, the records show a current right and left shoulder disability. Bilateral Shoulder Disability A remand is necessary to provide the Veteran with a VA examination to help determine the likely etiology of the claimed bilateral shoulder disability and to verify whether he had any qualifying service after discharge from active duty in September 1992. First, during the 2021 Board hearing, the Veteran testified that he had some Reserve service subsequent to his discharge from active duty in 1992. An attempt to verify the status of any periods of Reserve service is necessary. Second, although the record shows that complaints of the left shoulder began after a motor vehicle accident (MVA) in 2009, the Veteran is competent to report having shoulder pain as a result of his military duties, to specifically include loading artillery. Given a current diagnosis of right and left shoulder disabilities along with the Veteran's competent reports of in-service incurrence, a VA examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) The matters are REMANDED for the following action: 1. Contact the relevant agencies and attempt to verify all periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (IDT) subsequent to discharge from active duty in September 1992. Retirement Points sheets are not adequate for this purpose. 2. Thereafter, provide the Veteran with a VA examination to help determine the likely etiology of any currently diagnosed right and left shoulder disabilities. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed right and/or left shoulder disabilities. (b) Elicit from the Veteran and the record the history of all signs and symptoms associated with the diagnosed disabilities during service and since separation from service. (c) For each diagnosed disability, provide an opinion as to whether it is at least as likely as not (a 50 percent probability or higher) that it has its onset during service or is otherwise related to it. Please consider the Veteran's lay assertions regarding his military duties and onset of pain as well as documented evidence of MVA in 2009. (Continued on the next page) A complete rationale should be provided for all opinions. 3. Thereafter, readjudicate the appeal. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.