Citation Nr: 21009153 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 14-39 264 DATE: February 19, 2021 REMANDED Entitlement to service connection for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from May 1973 to April 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board remanded the case in December 2017 for further development, then decided the case in September 2019. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), and it was vacated and remanded back to the Board in August 2020. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (20177). 38 U.S.C. § 7107(a)(2) (2012). Entitlement to service connection for a right shoulder disability is remanded. The Veteran contends that he injured his right shoulder in service and that he is entitled to service connection, because his current disability is related to that in-service injury. Additionally, the Veteran believes he is entitled to opt-in under the Appeals Modernization Act (AMA) via the Rapid Appeals Modernization Program (RAMP). The Veteran was sent two RAMP Opt-in notices in July and August 2018. The Veteran faxed a RAMP Opt-in election form to the VA towards the end of September 2018, where he selected the higher-level review option. In early November 2018 the RO acknowledged receipt of the Veteran’s RAMP Opt-in election form and decided later that month, “We cannot process your request at this time because you do not have an appeal pending that qualifies for processing under RAMP. We cannot process your request at this time because your appeal has been activated by the Board of Veterans' Appeals and no longer qualifies for processing under RAMP.” As stated in the November 2018 RO response letter, your election at the time of receipt was no longer RAMP Opt-in eligible. RAMP was discontinued in 2019, when the AMA took effect. You were notified of another chance to opt-in under the AMA in June 2019, when you received your Supplemental Statement of the Case (SSOC), but you did not respond within 60 days of receipt of that letter or within one year of notification of the decision on appeal; so your appeal remains in the legacy system ta this time. The Veteran will have another chance to opt in under the AMA upon remand after issuance of the SSOC. The Board is remanding the issue to the RO for an addendum VA examiner opinion with additional instructions to guide the examiner in formulating an opinion the Board can better use for adjudication. This is what the April 2019 VA examiner wrote when considering the Veteran’s right shoulder for service connection: The Veteran claims that his rt shoulder was dislocated during service. There is no documentation of a rt shoulder condition in the Veterans available medical records. In 2016 he reported having a shoulder injury while in service that he was never treated for. This could be true however there is no chronicity to this complaint. He mentions pain in the LEFT Shoulder in 1995, 2002 and in 2005. There is some ambiguity in that the exam at the ER in 2002 where the ER physician reports rt shoulder pain however orders a left shoulder X-ray. The nursing triage note states the complaint is at the left shoulder. Even in those notes there is no mention of an injury during service. He has advanced arthritis at the rt shoulder. Written VAMC note dated however there are no other complaints of a rt shoulder injury. In a note dated 7 March 2002 he reports surgery at the R shoulder due to dislocation 20 years ago. In a note dated 5/31/1995 the provider reports surgery at rt shoulder in 1981 6 years after service for a rt shoulder injury while wrestling. The Veteran was released from service in 1975 which was 6 years prior. There is no indication that his reported injury occurred during service. Therefore, it is less likely as not the Veteran's claimed rt shoulder was caused by or incurred during service. The examiner did not comment on the Veteran’s lay statements. The Board regrets the additional delay, but feels remand is needed to give the Veteran’s claim every opportunity at being service connected. The matters are REMANDED for the following action: 1. After contacting the Veteran and/or his representative to obtain the appropriate authorizations and inquire about any outstanding relevant medical records not currently in the file, unless attempts to get said records have already been exhausted, request those private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. Obtain all VA treatment records that are not currently in the claims file, including records from James Haley Veterans’ Hospital and the VA Brooksville CBOC. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 3. After any additional records have been included in the claims file (to the extent they are available), schedule the Veteran for a VA examination to determine the nature and likely etiology of any current right shoulder disabilities. The examiner should review the entire claims file, including the claimant’s lay statements at the hearing, this remand, and any records obtained by the RO pursuant to the above instructions. All indicated studies, tests, and evaluations deemed necessary should be performed. The VA examiner shall elicit from the Veteran and record a complete medical history and report detailed examination findings referable to the claimed current right shoulder disability. All right shoulder diagnoses shall be reported. The examiner should also provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that any right shoulder disability is related to service based on his or her own evaluation of the evidence of record; whether it was chronic in service; whether it manifested to a compensable degree within the presumptive period of one year following service; or whether there is continuity of symptomatology from any in-service injury For purposes of this examination and opinion, the examiner should assume the lay statements are true and the examiner must comment on the Veteran’s lay testimony of an injury when a rather large, heavy canvas ball hit and dislocated both shoulders. The examiner must comment on the report that the Veteran relocated his own shoulders and reported problems with that right shoulder ever since. A complete rationale for all opinions is required. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.