Citation Nr: 22014795 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 20-04 653 DATE: March 15, 2022 REMANDED Entitlement to service connection for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran had active duty service from February 1963 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2021. A transcript of that hearing has been associated with the claims file. Entitlement to service connection for a right shoulder disability is remanded. In the January 1963 Report of Medical examination for entrance to active service, the examiner found that the Veteran's upper extremities were normal. Therefore, with respect to the right shoulder, the Veteran is presumed to have been sound upon entry to active service. Thus, because the presumption of soundness attaches with respect to a right upper extremity disability, there must be clear and unmistakable evidence that a right shoulder disability both pre-existed active service and was not aggravated during active service. In the January 1963 Report of Medical History, the Veteran reported having had a broken right arm prior to entry to active service. At the October 2021 Board hearing, the Veteran testified that he injured his right shoulder during bootcamp in San Diego, California going through an inverted obstacle course. The Veteran's service treatment records reflect that in February 1963, he sought treatment at the dispensary at the Marine Corps recruit depot in San Diego, California following an incident on an obstacle course. He also testified that he had right upper extremity injuries prior to entrance to active service, namely a broken right arm and an injured right shoulder. In April 2005, the Veteran had a General Medical examination. The examiner diagnosed right diagnosed shoulder pain secondary to rotator cuff injury and subacromial impingement. The examiner then opined that prior to entry to active service, the Veteran injured his shoulder pitching baseball and that the injury was then aggravated by his active service duties. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a right shoulder disability because no examiner has opined whether the Veteran's right shoulder condition clearly and unmistakably preexisted service, and if so, whether it was clearly and unmistakably not aggravated (worsened beyond natural progression) by service; or, if it did not pre-exist service, whether the right shoulder condition was caused by, or began in, service. The April 2004 examination is not adequate to decide the claim as the examiner did provide an opinion based on applicable law. Initially, the Board notes that the Veteran's complete VA treatment records from VA Mountain Home appear are not of record, and that the RO did not make adequate efforts to obtain them. In the January 2019 claim, the Veteran reported that he had been treated at VA Mountain Home from January 1981 to the present. The record shows that the RO conducted an electronic search in March 2019 which shows records at VA Mountain Home beginning in May 2000. The RO then appears to have viewed the Veteran's patient portal using a filtered date range of February 1975 to March 2019. In March 2019, the RO informed the Veteran that they requested his VA Mountain Home records and that they had only been able to obtain his records from May 2000 to March 2019 and that Mountain Home VAMC had listed his initial registration date as March 2000. They then informed him that the VA Mountain Home records from January 1981 to May 2000 could not be located, that they were therefore unavailable for review, that all efforts had been exhausted to obtain them and further attempt to obtain the records would be futile. However, the Board finds that all efforts to obtain the records have not been exhausted, as the RO did not make a request to the facility for printed records. An October 2018 records indicates that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. The RO did not attempt to obtain such records. Additionally, during his hearing, the Veteran discussed private treatment records for his shoulder near in time to service. The Veteran should be requested to submit such records or information which would help VA obtain such records. The matter is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Expedited handling is required.) 1. Obtain the Veteran's SSA records. 2. Ask the Veteran to complete a VA Form 21-4142 for hospital records for his right shoulder condition, to include a hospital in California and also Bishop Memorial Hospital in Norman, Oklahoma. Make two requests for the authorized records from any private facilities or physicians identified by the Veteran unless it is clear after the first request that a second request would be futile. Document all of the efforts in the claims file. 3. Request the Veterans VA treatment records, to include electronic as well as paper records, from the Mountain Home VAMC (from 1981 to 2000). All attempts to obtain such records must be thoroughly documented and associated with the claims file. If the RO concludes that the records sought do not exist or that further efforts to obtain them would be futile, the RO must document their conclusions in a Memorandum for the record. 4. Schedule the Veteran for a VA examination for his right shoulder disability. The examiner must review the claims file and identify all right shoulder disabilities. The examiner is asked to answer the following questions: a. Did any right shoulder disability clearly and unmistakably (obvious, manifest, undebatable) pre-exist his period of active service? b. If any right shoulder disability clearly and unmistakably preexisted service, is there clear and unmistakable evidence that it was NOT aggravated by service; either because there was no increase in disability during service or because any increase in disability was due to the natural progress of the preexisting condition? c. If any right shoulder disability did not clearly and unmistakably pre-exist service, did it onset in service or is it otherwise related to his service, to include any in-service right shoulder injury from participating in an obstacle course in January 1963? The examiner is asked to provide a complete rationale for all opinions offered. The examiner should also address the April 2005 VA examiner's opinion regarding the right shoulder. Also, the examiner's attention is directed to the April 2005 VA treatment record showing that the Veteran "had a long history of problems with the right shoulder (since the 1980s)" with an "initial injury was shoulder dislocation at that time." A February 2005 private medical record indicates "His right shoulder has been hurting him since he sustained injury to right shoulder in 1977 in MVA." Additionally, VA treatment records indicate a number of post-discharge automobile accidents. (Continued on the next page) The Veteran is considered credible for the purposes of the examination/opinion requested herein only. The examiner is informed that a positive opinion indicating a nexus to service does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against a nexus to service, the examiner should make a determination favorable to the Veteran. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan Leary 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.