Citation Nr: 21021968 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 12-30 701 DATE: April 14, 2021 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to May 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This matter was previously before the Board in March 2015, wherein the Board denied the claims as there was no competent evidence of an underlying current disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). Pursuant to a March 2016 Joint Motion for Partial Remand (JMPR), the claim for service connection for a right shoulder disability and a back disability were remanded back to the Board for appropriate consideration of private medical evidence pertaining to the Veteran’s claim. The Board remanded the issues in August 2016 and April 2017 to obtain VA treatment records and additional private treatment records. In November 2018, the Board denied the Veteran’s claim as the record contained no competent and credible evidence suggesting that either claim was etiologically associated with service. The Veteran appealed this decision to the CAVC and pursuant to a November 2019 Joint Motion for Remand (JMR), the parties found that the Board failed to ensure that Social Security Administration (SSA) records were associated with the Veteran’s claims file. The Board remanded the claim for SSA records in May 2020. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to service connection for a right shoulder disability 2. Entitlement to service connection for a back disability The Veteran contends that his right shoulder and back disabilities are related to his military service. The November 2018 Board decision denied entitlement to service connection for the Veteran’s right shoulder and back disabilities as there was no evidence of competent and credible evidence suggesting that either claim is etiologically associated with service. The Board found that the second and third prong necessary for service connection was not satisfied with respect to his claims. However, with respect to an in-service event or injury, upon further review of the Veteran’s claim file, the Veteran stated that he suffered a head injury in a motor vehicle accident during service in 1970. See August 2010 VA audiology examination. While the Veteran’s service treatment records (STRs) do not document such an accident, the Veteran’s military personnel records have not been requested. Upon receipt of the Veteran’s military personnel records, the RO should determine if there is evidence of a motor vehicle accident in service. Additionally, the Veteran’s VA treatment records indicate that he stated all his medical problems are related to Camp Lejeune contaminated water. See September 2017 VA treatment record. The Veteran’s claimed disabilities are not the ones included among the presumptive diseases for Veterans' service no less than 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987. Nevertheless, the absence of a disease from the presumptive list does not preclude the Veteran from otherwise proving that his disability resulted from exposure to contaminated water at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may still be granted on a direct basis. The Veteran’s STRs show that he was stationed in Camp Lejeune, but it is not clear as to the specific time frame. The RO should determine if the Veteran has the requisite service at Camp Lejeune and then obtain a VA examination and medical opinion to determine whether the claimed disabilities are consequently related to any potential exposure to contaminated drinking water at Camp Lejeune. In sum, the record does not contain sufficient information to make a decision on the Veteran's claim, as he has not yet been provided an examination and the Board lacks the medical expertise necessary to determine the nature and etiology of his right shoulder and back disorders. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, upon verification of the potential events in service, the RO should provide an examination and obtain a medical opinion for nexus upon remand. The matters are REMANDED for the following action: 1. Request the Veteran's complete service personnel records from the appropriate agency(ies). All the action taken in this regard should be documented. 2. Obtain VA treatment records from January 2021 to present. All reasonable attempts should be made to obtain any identified records. 3. The Veteran should also be afforded the opportunity to identify and submit any outstanding private treatment records relevant to his claims on appeal, or in the alternative, provide a release so that VA can attempt to obtain these records. 4. If the RO determines that the Veteran was involved in a motor vehicle accident in service and/or has the requisite service in Camp Lejeune, schedule the Veteran for a VA examination with medical opinion to address the claim for a right shoulder disability and a back disability. The decision for an in-person examination of the Veteran for the right shoulder disability and back disability is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) The examiner should identify any current diagnoses the Veteran has presented related to his right shoulder at any time during the claim period (i.e., from June 2010 to present). b) For each 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 had an onset in service or is otherwise related to the Veteran's active service, to include due to the motor vehicle accident in service and/or contaminated water at Camp Lejeune. c) The examiner should identify any current diagnoses the Veteran has presented related to his back at any time during the claim period (i.e., from June 2010 to present). d) For each disability identified for the back disability, is there clear and unmistakable evidence that a back condition, to include kyphosis, preexisted service? e) If there is clear and unmistakable evidence that a back condition preexisted service, is there clear and unmistakable evidence that the preexisting back condition did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? f) If there was an increase in the severity of such a pre-existing back condition during service, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. g) If the examiner finds that a back disability did not clearly and unmistakable preexist the Veteran’s military service, or a back disability was not clearly and unmistakably aggravated by the Veteran’s military service, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability had an onset in service or otherwise related to active service, to include due to the motor vehicle accident in service and/or contaminated water at Camp Lejeune. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. The examiner is reminded that rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings and must reflect consideration of the competent lay assertions of pertinent symptomology from service to the present. All opinions or findings provided must include an explanation for the bases for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.