Citation Nr: 21005824 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-21 265 DATE: February 2, 2021 REMANDED Entitlement to service connection for a left shoulder condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 2010 to March 2011 and from May 2011 to February 2012. This appeal comes to the Board of Veteran’s Appeals (Board) following a remand for further development dated November 2019. In a rating decision dated February 2015, issued by the Department of Veterans Affairs (VA) Regional Office (RO), where the RO continued the denial of service connection for a left shoulder condition because the condition neither occurred in nor was caused by service. The Veteran timely appealed. In July 2019 the Veteran testified at a Hearing before the undersigned Veteran’s Law Judge, and a transcript of the hearing is of record. Entitlement to service connection for a left shoulder condition is remanded. Although the Board regrets the additional delay, the Veteran’s claim for service connection must be remanded before the Board is able to make a determination on the merits. Specifically, the Board finds that an additional medical opinion is required in order to develop the Veteran’s claim that his left shoulder disorder is related to his active duty service. The Veteran contends in various statements that he is entitled to service connection for a left shoulder disability, and that pain initially began around 2012 when doing pushups for physical training when on active duty in Afghanistan. The Veteran could not recall if he was seen for his left shoulder condition on active duty. The Veteran also reported self-treatment with Ibuprofen that he was taking for other conditions. He reported he was not seen post-service for his left shoulder condition until about 2013 or 2014. At his Board hearing in July 2019, the Veteran testified further that he never had a problem with his shoulder before service. The Veteran next testified that he fell out of a moving vehicle while wearing all of his equipment. He was a guard wearing heavy body armor and carrying a very heavy backpack, the driver of the vehicle accelerated unexpectedly due to enemy fire, the vehicle hit a bump, and the Veteran fell out of the rear of the moving vehicle and onto the ground. The Veteran associates his shoulder disorder with this accident. In addition, the Veteran testified that he believes carrying “the bag” on his shoulder is related to his shoulder disability and that there is more information in this regard in records related to his service-connected bilateral pes planus. The Veteran’s service treatment records (STR’s) reflect that the Veteran’s entrance physicals are silent for any abnormalities of the shoulders upon entry into active duty. A record identified as DOD Military Treatment Facility dated November 11, 2010 reflects “Pain in joint involving shoulder region”. (This record appears in STR’s associated with the Veteran’s file January 13, 2015.) An accident report in the Veteran’s claim file reflects that the date of the incident when the Veteran fell out of a moving vehicle with all his gear was September 2011. A progress note record dated July 24th, 2012 reflects that “the Veteran was seen for right shoulder pain. The report reflects that his right shoulder has been uncomfortable with limitations in abduction of a long standing duration. I saw the patient prior to going into the guard.” The assessment for right shoulder in July 2012 is impingement syndrome, adhesive capsulitis. An October 24, 2012 record reflects that the Veteran was referred for headaches, muscle pain, swollen stiff joints, back pain, chest wall pressure, neck pain. A December 2014 physical profile reflects chronic bilateral shoulder pain bilateral shoulder strain with left acromioclavicular joint osteo arthritis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a disorder was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not etiologically related to, including aggravated by, an in-service injury, event, or disease. In January 2020, the Veteran was afforded a VA examination for his left shoulder disability. The examiner opined that it was less likely than not that the Veteran’s shoulder disability was incurred in or caused by an in-service illness, event or injury because the STR’s do not include any visits. Relying on the absence of evidence in medical records to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, the examiner did not address the Veteran’s lay assertions about the possible impact of his in-service accident on his current shoulder disability, any impact by carrying a heavy sack, and any possible aggravation or worsening caused by any of his other service connected disabilities. The VA’s duty to assist includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159 (c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, a remand is necessary to obtain an adequate opinion addressing the pertinent medical questions based on all of the evidence. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).   The matters are REMANDED for the following action: 1. With assistance from the Veteran, identify if there are any additional outstanding records of pertinent medical treatment for a left shoulder disability and if so, obtain the records. 2. After any additional records are associated with the claims file, schedule the Veteran for a VA medical examination with an appropriate qualified physician other than the most recent examiner. The examiner should review this remand, the entirety of the claims file, the history presented by the Veteran, including the Veteran’s testimony and statements, and examination results. The examiner should reflect that this review was done. All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail. The examiner is requested to provide an opinion as to the following questions. (a) Identify the nature and etiology of (each) of the Veteran’s left shoulder disability(s). (b) For each left shoulder disorder identified, is it at least as likely as not (i.e. probability of 50 percent or greater) that the disability was incurred during the Veteran’s active military service or is secondary to (or aggravated by) the Veteran’s service-connected disabilities. (c) Please specifically reference and reconcile, among other things: (1) the accident the Veteran experienced when he fell from a moving vehicle in 2011; (2) the Veteran’s various STR’s referencing shoulder complaints and muscle and joint pain; (3) the Veteran’s contention that carrying a heavy sack during service contributed to his current left shoulder disorder; (4) impact (if any) from the Veteran’s other service connected disability(s). Please provide clearly stated rationale and identify and reference treatment records and/or Veteran statements based on the evidence to support your conclusions. Attempt to reconcile any conflicting findings. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.M. Schneider 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.