Citation Nr: 21023860 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-58 665A DATE: April 21, 2021 REMANDED Entitlement to service connection for a right shoulder condition is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1980 to June 1984. This matter was last before the Board in December 2020, following a September 2019 hearing, whereupon it was remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. The Board in its December 2020 remand directed the AOJ to elicit an addendum opinion from a qualified examiner responsive to the query of whether the Veteran clearly and unmistakably had a pre-existing right shoulder condition at the time of his entrance into service. If so, an opinion was needed as to whether that preexisting right shoulder condition clearly and unmistakably was NOT aggravated permanently by his service. In setting forth the requested opinion, the Board specified that the chosen examiner was to consider the fact that no right shoulder condition was noted on the Veteran’s entrance examination. In a February 2021 opinion, a VA examiner opined that it was less likely than not that the Veteran’s right shoulder condition was incurred in or was otherwise attributable to service. In support thereof, the examiner again relied on the in-service report by the Veteran that he had experienced a right shoulder injury prior to service and had a history of shoulder dislocations. On this basis solely the examiner opined that it was likely the Veteran had a pre-existing chronic shoulder condition characterized by frequent dislocations. In addition, the examiner found that the right shoulder condition did not persist throughout his service as evidenced by the lack of any noted right shoulder symptomatology on the discharge examination. The examiner noted no history of complaints of right shoulder symptomatology until 2005. Regrettably, the Board must once again remand this case to secure another etiology opinion that is responsive to the queries it has already set forth, as the February 2021 opinion is deficient. To begin, the VA examiner confused the standards of evaluation for determining service connection on a direct basis with the standard for considering whether the Veteran’s right shoulder condition pre-existed service. The examiner stated that it was likely that the Veteran had a pre-existing chronic shoulder condition, but the standard that should be use is a “clear and unmistakable” one. On remand, the chosen examiner must set forth an opinion utilizing the proper standard. Furthermore, the February 2021 examiner relied on an inaccurate factual record in finding that there was no evidence of complaints of a right shoulder injury following service until 2005. The Board’s review of the record reflects that the Veteran underwent significant and continuing care for recurrent right shoulder pain and dislocations in 1990, with an evaluation of possible bursitis. Accordingly, on remand, the chosen examiner must consider these private post-service medical records in setting forth his or her opinion. The matters are REMANDED for the following action: Provide the claims file to a qualified VA examiner in order to secure an addendum opinion as to the likely etiology of the right shoulder condition. The claims file must be reviewed by the examiner, and the examiner must note that they have reviewed the claims file prior to issuing any opinion. The examiner is asked to provide an opinion as to whether the right shoulder condition clearly and unmistakably preexisted service, and clearly and unmistakably did NOT worsen beyond natural progression during service. Regardless of whether there is this required clear and unmistakable evidence to satisfy this two-prong analysis, consider whether it is it at least as likely as not (a 50 percent probability or higher) that the Veteran’s right shoulder condition is causally related to service. In setting forth these opinions, the examiner should comment on the Veteran’s self-reporting during his April 1980 entrance examination that he experienced a right shoulder injury prior to service. The examiner should also comment upon the in-service complaint of intermittent right shoulder dislocation on a May 1983 outpatient record. At that time, the Veteran attributed to an injury he sustained while playing football two years prior, so during service. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.