Citation Nr: 21007790 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-11 055 DATE: February 10, 2021 REMANDED Entitlement to service connection for a right should disability is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from April 1977 to July 1999. In May 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the claims file. In September 2019 the Board of Veterans’ Appeal (Board), among other things, issued a decision that denied the Veteran’s claim of service connection for a right shoulder disability. The Veteran appealed the September 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the September 2019 Board decision to the extent that it denied service connection for a right shoulder disability. Entitlement to service connection for a right should disability is remanded. As to the claim of service connection for a right shoulder disability, as noted by the JMPR the December 2008 initial evaluation from Physical Therapy at Dawn diagnosed the Veteran with a right rotator cuff sprain. Moreover, an August 2020 record from Presbyterian Intel HFL diagnosed the Veteran with right rotator cuff syndrome. Therefore, it appears that the Veteran has a current disability. Additionally, the Board finds that the Veteran provided competent evidence of an in-service event that caused an injury when he testified that he had pain in his right shoulder after spiking a ball while playing volleyball when stationed in Panama because the Court has said that appellant’s are competent and credible to report on what comes to them via their own senses; like having shoulder pain after playing volleyball. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Given the above, the Board finds that the criteria to provide the Veteran with a VA examination to obtain a medical opinion as to the origins of his post-service right shoulder disability have been met. See 38 U.S.C. § 5103A(b); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006). As noted above, the December 2008 evaluation from Physical Therapy at Dawn diagnosed the Veteran with a right rotator cuff sprain and the August 2020 record from Presbyterian Intel HFL diagnosed him with right rotator cuff syndrome. However, the record does not include any other post-service (i.e., post-July 1999) treatment records from the Physical Therapy at Dawn, Presbyterian Intel HFL, or any other healthcare provider documenting the appellant’s complaints, diagnoses, or treatment for a right shoulder disability. Therefore, while the appeal is in Remand status an attempt should be made to obtain any outstanding medical records. See 38 U.S.C. § 5103A(b); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). The appeal is REMANDED for the following actions: 1. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records including all post-July 1999 medical records from Physical Therapy at Dawn, Presbyterian Intel HFL, as well as from any other identified healthcare provider. If possible, the Veteran himself and/or his representative should submit and new pertinent evidence the Board/VA does not have (if any). Because this appeal has been to the Court, multiple attempts should be made to obtain all identified post-July 1999 medical records including from Physical Therapy at Dawn and Presbyterian Intel HFL. If the Veteran does not provide the needed authorizations, the records cannot be located, and/or no such records exist, a Memorandum documenting all of VA’s actions to obtain the records should be prepared and associated with the claims file and the Veteran and his representative should be provided with a copy of the Memorandum. 2. Obtain and associate with the claims file any outstanding VA treatment records. 3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his right shoulder disability. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide diagnoses for all right shoulder disabilities (if any). b. As to all diagnosed right shoulder disabilities, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it, including the right rotator cuff sprain diagnosed in the December 2008 initial evaluation from Physical Therapy at Dawn, is due to a disease or injury while on active duty. c. If the Veteran’s right shoulder disabilities (if any) include arthritis, provide an opinion as to whether it manifested in the first post-service year. In providing answers to the above question the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology to include, his contention that he first had problem with right shoulder pain following spiking a ball while playing volleyball while on active duty. In providing answers to the above question the examiner should consider and discuss the service treatment records. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.