Citation Nr: 22013849 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 09-18 952A DATE: March 10, 2022 REMANDED The claim for entitlement to service connection for a right shoulder disability is remanded. The claim for a temporary total evaluation due to treatment for the right shoulder disability is remanded. REASONS FOR REMAND The Veteran served in the U.S. Army on active duty from August 1977 to June 1984, and from December 2003 to February 2005. He served in Iraq from approximately February 2004 to January 2005. He is therefore a southwest Asia Veteran within the meaning of VA regulations. In his May 2012 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. He subsequently requested to testify before the Board by video teleconference; however, in March 2017 he withdrew his request for a hearing. This case was before the Board previously, in 2017 and 2019, when these claims were remanded for further development. In a December 2020 decision, the Board denied service-connection for a right shoulder disability and following from this, denied a total temporary evaluation for right shoulder treatment. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (Court), which issued an October 2021 order vacating the December 2020 Board decision and remanded the issues for further development in accordance with a joint order for partial remand (JMPR). The Veteran asserts his right shoulder disability is the result of his active service. Available service treatment records show the Veteran injured his right shoulder during his first period of active duty. He has argued that his current right shoulder disability is the result of continued wear and tear on his right shoulder as the result of his military duties during his second period of active service. However, the record presents inconsistencies about the Veteran's active service and does not show the extent of his U.S. Army Reserve and National Guard service. First, the Veteran's DD Form 2014 for the period of active duty ending February 2005 shows in Block 18 that the Veteran's service in Iraq from what appears to be April 2007 to January 2005. This is inconsistent with the length of active service reported in Block 12. Second, available records reflect the Veteran served in the U.S. Army Reserves and National Guard between his first period of active service ending in 1985 and his second period of active service beginning in December 2003, and after his second period of active service was ended. The Veteran's periods of active duty for training have not been obtained. Moreover, his service records from his second period of active duty as well as his reserve service records are incomplete. The JMPR has directed VA to consider aggravation in the present case. In addition, the Veteran has argued his right shoulder is the result of active service, to include the pre-existing right shoulder injury and wear and tear of the right shoulder during his second period of active service. It is therefore necessary to make further attempts to both clarify the Veteran's periods of service, and to obtain his complete service medical and personnel records. The claim for a temporary total evaluation for right shoulder surgery is inextricably intertwined with the issue of service-connection for the right shoulder disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Verify the Veteran's periods of active duty, active duty for training, and inactive duty for training. 2. Take all appropriate actions to obtain the Veteran's service medical and service personnel records from all periods of active duty, active duty for training, and inactive duty for training. 3. Develop the claim as one involving service in Iraq and in the southwest Asia theater of operations; determine whether the Veteran or his unit served in combat or under combat conditions. 4. After any other development deemed appropriate, schedule the Veteran for VA examination with the appropriate specialist to determine the nature and etiology of the Veteran's right shoulder disability. All right shoulder orthopedic, muscular, and neurological pathology must be reported. The claims file must be reviewed in conjunction with the claims file. For all diagnosed right shoulder pathology, the examiner must offer an opinion as to whether it is at least as likely as not (50 percent or more probability) that any diagnosed right shoulder pathology (a.) is in any way the result of the service-connected fibromyalgia by (i) aggravation of a non-service-connected disease or injury by the service-connected fibromyalgia, or (ii) aggravation of the previous inservice shoulder injury by the service-connected fibromyalgia, or (iii) in any other way associated with the service-connected fibromyalgia, or (b.) is in any way the result of any other service-connected disability, as (i) a disability secondary to the service-connected fibromyalgia; back disability with associated radiculopathy; and/or degenerative joint changes/disease, arthritis or osteoarthritis of the bilateral knees and left ankle; or (ii) as associated with the development of an overall disease such as fibromyalgia and/or arthritis or other degenerative joint and/or muscle disease. (c.) is in any way the result of aggravation of any pre-existing shoulder injury sustained including during his first period of active duty or of any other shoulder injury or disease that occurred during a period of an active duty or active duty for training or of any other injury that occurred during a period of inactive duty for training. (d.) is in any other way the result of any injury or disease occurring during a period of active duty or active duty for training or of injury during any period of inactive duty for training. A complete rationale for each opinion provided is necessary. The VA examiner must discuss: (e.) the right shoulder injury during the Veteran's first period of active service; (f.) the diagnosis of and service-connection for fibromyalgia as a result of service in the southwest asia theater of operations; (g.) the diagnosis of early right shoulder osteoarthritis in 2009 and prior to the Veteran's right shoulder surgery; (h.) the Veteran's assertion of right shoulder pain persisting from inservice wear and tear on his right shoulder from lifting and carrying supplies and equipment during active service in southwest Asia to the present; and (i.) the Veteran's status as a southwest Asia Veteran and, if applicable, a combat Veteran. 5. The AOJ must ensure that all requested development has been completed. 6. After the above has been completed, readjudicate the claim. If the claim is again denied, the AOJ must send the Veteran and his representative a supplemental statement of the case with sufficient time to respond. The case should thereafter be returned to the Board as appropriate. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.