Citation Nr: 21025742 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-27 309A DATE: April 28, 2021 REMANDED Entitlement to service connection for a right shoulder disability (bursitis, AC joint arthritis, rotator cuff tendonitis, and rotator cuff tear), including as secondary to service-connected residuals of right forearm fracture, is remanded. Entitlement to service connection for a right shoulder scar, to include based upon in-service aggravation of a pre-existing scar, is remanded. REASONS FOR REMAND The Veteran served on active duty service from January 1971 to January 1973; and from July 1973 to July 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In August 2018, the Board reopened the previously denied claim of service connection for a right shoulder disability, and remanded the issue for a VA examination. In November 2019 and November 2020, the Board remanded the claim for new examinations. The Board recognizes the development of the Veteran’s right shoulder claim has involved scarring to the right shoulder, which was present prior to the Veteran’s active duty and noted on his entrance examination, as well as other right shoulder disabilities, such as bursitis, AC joint arthritis, rotator cuff tendonitis, and rotator cuff tear, which are claimed on a direct basis. Given the differing theories of entitlement, the Board finds separating these matters into two stated claims is in the best interest of clarity and efficiency. While the Board sincerely regrets the delay, the Board finds the RO did not ensure adequate opinions were received related to the Veteran’s diagnosed right shoulder disabilities, and did not ensure compliance with prior Board remand directives. The Board, therefore, has no choice but to again remand the claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); also see Stegall v. West, 11 Vet. App. 268 (1998). First, with regard to the Veteran’s right shoulder disabilities such as bursitis, AC joint arthritis, rotator cuff tendonitis, and rotator cuff tear, the Board’s November 2019 remand noted fault in the June 2019 VA examiner’s opinion, in part, on the basis that it did not consider the Veteran’s reports of continuity of symptoms. In December 2019, the Veteran was again examined. In the history section of the examination report, the examiner recognized the Veteran’s reported history of symptoms. However, the rationale for the negative opinion provided relied only upon documented medical evidence and made a conclusion that there is “no evidence of chronic or recurrent complaints of shoulder issues during service.” By indicating there is “no evidence,” the examiner’s rationale clearly disregarded the Veteran’s report of having symptoms of right shoulder pain in service and ever since. An examiner is not free to ignore such competent lay statements. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Another opinion is, therefore, required. With regard to the Veteran’s recognized right shoulder scars, the Board finds the opinion in this case does not use the correct standard for situations such as this when the disability at issue preexisted the Veteran’s active service. In this case, the August 1970 pre-induction examination shows the Veteran entered service with a keloid scar of the right shoulder. At the time of his July 1996 Regional Office hearing, the Veteran testified that during his junior year in high school he was involved in an automobile accident where he injured his right shoulder. He recalled having a big cut and from the cut a keloid formed on his right shoulder; however, he still went into the military. A veteran is presumed in sound condition except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. The U.S. Court of Appeals for Veterans Claims (Court) has explained that even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Yanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable-evidence standard is an “onerous” one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)); see also Yanerson, 12 Vet. App. at 263 (Nebeker, C.J., concurring in part and dissenting in part) (“[O]nly an inference that is iron clad and copper riveted can be ‘unmistakable.’”). In this case, however, a right shoulder scar was noted on the entrance examination, and therefore, the rules concerning the presumption of soundness are inapplicable. At the same time, the service treatment records show the Veteran reporting right shoulder pain and being advised to have a surgery to remove the existing keloid scar during his active service. The service treatment records also show the procedure did take place to remove that scar. A pre-existing injury or disease will be considered to have been aggravated by service where there is an increase disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. A June 2019 VA examiner suggested the Veteran’s right shoulder disability existed prior to service and was clearly and unmistakably not aggravated during service. The basis for this opinion was noted to be the lack of any complaints related to the right shoulder during the Veteran’s active service. This is factually incorrect. During the Veteran’s active service, in March 1971, the Veteran, while being treated for his back, also made complaints of shoulder pain. The clinician noted x-ray was normal and the Veteran had full range of motion. The Veteran was advised at that time to keep his appointment for keloid removal. In June 1972, the Veteran requested surgical removal of the keloid from his right shoulder and in August 1972 the Veteran’s keloid was removed. Thus, the Veteran entered service with a right shoulder scar noted on his entrance examination, but no noted symptoms associated with that scar, and during service he experienced pain and had to have the procedure to have the keloid scar removed. What is necessary in this case is an opinion that addresses whether this shift in symptoms and need for a removal of the keloid scar during service represented an increase in severity of the disability, and if so, whether that increase was due to the natural progress of the disability. An additional opinion must be sought. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right shoulder disability other than scarring (bursitis, AC joint arthritis, rotator cuff tendonitis, and rotator cuff tear) is at least as likely as not related to the right shoulder pain documented in service, which the Veteran reports has continued ever since initially being noticed in service. A rationale should be provided for any opinion expressed and that rationale must consider the Veteran’s report of experiencing right shoulder pain in service and ever since. The Board leaves it to the clinician writing the opinion to determine whether additional physical examination of the Veteran is necessary. 2. Obtain an addendum opinion from an appropriate clinician related to the Veteran’s claim for service connection for right shoulder scarring. If a new examination is deemed necessary by the clinician completing the report, then such an examination should be scheduled. The clinician must discuss whether the Veteran’s right shoulder scar, which was noted on his entrance into active duty, increased in severity during service, and if not, the reasons for that conclusion should be fully explained. If the Veteran’s right shoulder scar increased in severity during service, the clinician should offer an opinion whether that increase in disability was due to the natural progress of the disability. The reasons for this opinion also should be fully explained. The clinician should discuss the Veteran’s report of shoulder pain in service and the need for removal of the keloid scar during service in the rationale for this opinion. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.