Citation Nr: 21076684 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-10 774 DATE: December 27, 2021 REMANDED Entitlement to service connection for a right shoulder condition is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1960 to July 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in July 2018. The Board remanded this matter in September 2018, June 2020, November 2020, March 2021, and August 2021 for additional development. The matter is now returned to the Board for further appellate review. This appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c) (2019); 38 U.S.C. § 7107 (a)(2) (2012). The Veteran contends his right shoulder condition is due to his active-duty service, to include falling from a ladder while on fire watch aboard the U.S.S. Forrestal. The Board remanded this matter in August 2021 to obtain a new medical opinion. VA obtained a medical opinion September 2021; unfortunately, it is inadequate to adjudicate the Veteran's claim. The September 2021 examiner provided a negative nexus opinion, in part, because "it is not uncommon for an individual to develop the above noted shoulder conditions from an injury post military discharge ie. occupational injury, sports injury and /or an injury from a motor vehicle accident." The record does not contain any evidence the Veteran suffered a right shoulder post-service injury nor did the examiner discuss what post service injury the Veteran may have sustained. Without evidence of a post-service injury, attributing the Veteran's right shoulder condition to a post-service injury would be speculation. See Barr v. Nicholson, 21 Vet. App. 303, 311; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned). Moreover, the examiner reported the Veteran's service treatment records (STRs) and post service treatment records do not contain treatment for a right shoulder condition. However, the Veteran has repeatedly reported he fell from a ladder while on fire watch, sought treatment from a corpsman, and received limited duty status for one week. The Veteran also testified at the July 2018 hearing that the Jersey City Fire Department denied him employment in 1965 because of his right shoulder condition. The Veteran's spouse also submitted a statement indicating she remembers the Veteran sending her a letter reporting he fell from a ladder and sought treatment while on active duty. The examiner appears to have impermissibly dismissed the Veteran's reports of an in-service fall and subsequent right shoulder problems solely because these complaints were not documented in contemporaneous medical treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). The record also contains evidence the Veteran received private treatment for his right shoulder from the Orthopedic Institute of Central Jersey and Peak Performance Sports and Occupational Rehabilitation. In the June 2020 Board remand, the Board requested the agency of original jurisdiction (AOJ) have the Veteran identify any private treatment he may have received for his right shoulder. The AOJ sent the Veteran VA Form 21-4142a in June 2020. The Veteran did not respond. In order to afford the Veteran every opportunity to substantiate his claim and because the Board is remanding this matter regardless, the AOJ should again attempt to obtain any private treatment records for the Veteran's right shoulder. The Veteran is advised he must cooperate with the AOJ's efforts to obtain relevant evidence or otherwise the issue on appeal may be decided based on the current evidence of record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (indicating the duty to assist is not always a one-way street). The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any treatment provider and for any other medical care provider or medical facility which may have records related to the Veteran's right shoulder. Make two requests for the authorized records from any medical care provider or facility identified unless it is clear after the first request that a second request would be futile. 2. Obtain an opinion, preferably with a qualified clinician who has not previously examined the Veteran, to determine whether the Veteran's right shoulder disability is related to his military service. All pertinent evidence of record, including a copy of this remand order, must be made available to, and reviewed by the examiner. All clinical findings should be reported in detail. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should identify all right shoulder disabilities found during the course of the appeal, including right shoulder impingement syndrome, right shoulder posterior capsule fibrosis, right shoulder rotator cuff tendonitis, and right shoulder AC joint osteoarthritis. For each right shoulder disability identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the right shoulder disability began in or is otherwise caused by the Veteran's active service. In doing so, the examiner should address the lay statements of the Veteran and his spouse that the Veteran injured his right shoulder after a fall in service, that he sought treatment regarding his right shoulder after leaving service, and that he has experienced problems with his right shoulder since leaving service. The examiner is advised that the Veteran and his spouse are competent to report the Veteran's symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner finds the Veteran's right shoulder condition is due to post-service factors, such as a motor vehicle accident, occupational injury, or sports injury, rather than military service, the examiner must explain why the right shoulder condition would be MORE likely due to some other post-service factor rather than the Veteran's active-duty service. If the examiner rejects the Veteran's or his spouse's reports of symptoms capable of lay observation, the examiner must provide a reason for doing so. The lack of documentation of the symptoms in contemporaneous medical records, standing alone, is an insufficient basis to reject the Veteran's and his spouse's lay statements. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.