Citation Nr: 21012890 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-19 593 DATE: March 5, 2021 REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for thoracolumbar spine disorder is remanded. REASONS FOR REMAND The Veteran had active service from March 1969 to February 1971. This matter comes before the (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Winston-Salem, North Carolina, that denied the claims of entitlement to service connection for left and right shoulder disorders, a cervical spine disorder, and a thoracolumbar spine disorder. This matter was previously before the Board in July 2018 at which time it was remanded for additional development. It is now returned to the Board. 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a right shoulder disorder. 3. Entitlement to service connection for a cervical spine disorder. 4. Entitlement to service connection for thoracolumbar spine disorder. The Veteran asserts that he has current left and right shoulder, cervical spine, and low back disabilities that are manifested as a result of his period of active service. A review of the Veteran’s service treatment records reveals that on service entrance in May 1968, the Veteran reported on a report of medical history that he had experienced painful or “trick” shoulder or elbow; recurrent back pain; and swollen or painful joints. The examiner noted occasional shoulder and back pain, not considered disabling. The associated report of medical examination (along with an October 1970 separation report of medical examination) shows the spine and upper extremities were within normal limits. There is no report of medical history dated from the Veteran’s separation from active service associated with the claims file. A private medical record from S. Chidambraram, M.D., dated in November 2010, shows that the Veteran was said to have neck and low back spinal stenosis, along with pain in both upper extremities. The examiner opined that the most probable contributing factors for the Veteran’s disabilities were his job-related duties while in service. Aggravation of the Veteran’s pain was said to have probably been caused by carrying weight and also pushing and pulling heavy objects in service. The Veteran was afforded respective VA examinations in January 2020. He was diagnosed with degenerative arthritis of both shoulders; degenerative arthritis of the cervical spine; and degenerative arthritis and intervertebral disc syndrome of the lumbar spine. In each instance, the examiner determined that it was less likely than not the asserted disability had onset during active service. The examiner relied on an absence of evidence in the service treatment records, along with the passage of several years since service for evidence of a diagnosis, to support the opinions provided. A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The Veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003. When no pre-existing condition is noted upon examination for entry into service, a Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. Mere history provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 C.F.R. § 3.304 (b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Therefore, to rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran’s disability existed prior to service, and (2) that the pre-existing disability was not aggravated during service. Id.; see also VAOPGCPREC 3-2003. The second prong may be rebutted with clear and unmistakable evidence establishing that either (1) the disability underwent no increase in severity during service, or (2) any increase in severity was due to the natural progression of the condition. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Wagner, 370 F.3d at 1096). By “clear and unmistakable evidence” is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). As indicated above, the examiner at service entrance in May 1968 indicated that the Veteran would experience occasional shoulder and back pain that was not considered disabling. While not thought to be disabling, the fact remains that the Veteran entered service with known symptoms affecting the shoulders and back. The VA examiner in January 2020 provided opinions regarding direct service connection, however, respective opinions were not provided as to whether or not the Veteran’s pre-existing symptoms were aggravated during his period of active service, notably as a result of physical duties associated with his military occupational specialty (MOS) as a combat engineer. Moreover, because the Veteran has reported a continuity of symptoms since service, the Board finds that the January 2020 VA medical opinions are of limited probative value because the examiner relied on the absence of symptoms noted in the service treatment records without commenting on the Veteran’s competent statements regarding the chronicity of his symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). As such, the issues must be remanded for additional medical opinions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination of his claimed left and right shoulder, cervical spine, and lumbar spine disorders. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a) With respect to each respective left shoulder, right shoulder, cervical spine, and lumbar spine disorder, please opine whether it is clear and unmistakable (obvious, manifest, and undebatable) that a diagnosis existed prior to active service. In this regard, the May 1968 report of medical history must be considered. If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing diagnosis WAS NOT aggravated (i.e., chronically worsened) during service or whether it is clear and unmistakable that any increase was due to the natural progress. (b) If an unfavorable opinion with respect to remand paragraph (a) is rendered, state whether it is at least as likely as not that the respective diagnosed disability had onset in service, was manifested by arthritis within one year of separation from service, or is otherwise related to any period of active service, to include having engaged in heavy physical duties associated with the Veteran’s MOS as a combat engineer. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. The absence of evidence of treatment for a particular shoulder, cervical spine, or lumber spine disorder in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. Carole R. Kammel Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Orfanoudis, 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.