Citation Nr: 22016182 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-21 701 DATE: March 21, 2022 REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for an upper spine disorder is remanded. REASONS FOR REMAND The Veteran served in the United States Army and Army National Guard from August 1973 to August 1977, from November 1990 to April 1991, from February 2001 to October 2001, from December 2004 to June 2006, and from April 2009 to June 2010. The Veteran appeared at a Board hearing in October 2021; a transcript is of record. During the Board hearing, the undersigned Veterans Law Judge clarified the issues on appeal, identified potential evidentiary defects, and clarified the type of evidence that would support the Veteran's claim. The actions of the Veterans Law Judge supplement the Veterans Claims Assistance Act (VCAA) and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. 1. Entitlement to service connection for a left shoulder disorder is remanded. 2. Entitlement to service connection for a right shoulder disorder is remanded. 3. Entitlement to service connection for an upper spine disorder is remanded. The Board must remand this claim for further development. In 1998, the Veteran had acromioplasty surgery on his right shoulder. Subsequently in July 2002, during active service training, the Veteran was involved in a motor vehicle accident. The Veteran at the time reported whiplash, but later reported pain in the right shoulder and neck. In a medical report in August 2009, the Veteran reported pain in his neck which extended into his upper back and left shoulder. The Veteran was afforded a VA medical opinion in July 2014, but the Board finds that its rationale is flawed. While the VA examiner found that it was less likely than not that the Veteran's upper spine and bilateral shoulder disorders were related to service, the examiner wrote that the Veteran "had surgery on his left shoulder in 1999 that is a pre-existing condition." The Board notes that the Veteran had surgery on his right shoulder in May 1998. See e.g., STR- Medical: Letter from Dr. T.S. of Forsyth Street Orthopedic Surgery & Rehabilitation Center, dated May 11, 1998; see also October 2021 transcript at pp. 14-15. Further, although the examiner identified the shoulder as a pre-existing condition, no aggravation opinion was conducted. As such, the Board finds that this opinion is inadequate for adjudication purposes. Furthermore, an additional method of entitlement to service connection has been raised. The medical records raise whether the Veteran's right shoulder disorder pre-existed the periods of service that started in February 2001, December 2004 and April 2009 respectively. As such, respective opinions under 38 C.F.R. § 3.306 and 38 C.F.R. § 3.310 are necessary. The matters are REMANDED for the following action: 1. Send the claim file to a new VA examiner of appropriate expertise. It is up to the examiner's discretion if a new examination is necessary. 2. The VA examiner is asked to provide an opinion as to whether: 3. It is as least as likely as not (i.e., a probability of fifty percent or greater) that the Veteran's right shoulder disorder is directly related to the Veteran's active service. In their opinion, the examiner should consider the documented July 2002 motor vehicle accident wherein a 5-ton truck struck his vehicle from behind, as well as the Veteran's competent and credible reports that his condition felt worse from wearing a fifty-pound flak jacket while riding over very bumpy roads throughout his tours in Iraq and Afghanistan. 4. It is as least as likely as not (i.e., a probability of fifty percent or greater) that the Veteran's left shoulder disorder is directly related to the Veteran's active service. In their opinion, the examiner should consider the documented July 2002 motor vehicle accident wherein a 5-ton truck struck his vehicle from behind, as well as the Veteran's competent and credible reports that his condition felt worse from wearing a fifty-pound flak jacket while riding over very bumpy roads throughout his tours in Iraq and Afghanistan. 5. It is as least as likely as not (i.e., a probability of fifty percent or greater) that the Veteran's upper spine disorder is directly related to the Veteran's active service. In their opinion, the examiner should consider the documented July 2002 motor vehicle accident wherein a 5-ton truck struck his vehicle from behind, as well as the Veteran's competent and credible reports that his condition felt worse from wearing a fifty-pound flak jacket while riding over very bumpy roads throughout his tours in Iraq and Afghanistan. A complete rationale for any opinion expressed should be provided in a report. 6. The VA examiner is asked to provide an opinion as to: 7. Whether a right shoulder disability clearly and unmistakably preexisted any period of active service. 8. If a right shoulder disability clearly and unmistakably preexisted any period of active service, whether there is clear and unmistakable evidence that the right shoulder disorder was not aggravated by service. 9. The VA examiner is asked to: 10. Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's left shoulder and upper spine disorder are caused by service-connected disease or injury, to include a service-connected lumbar strain. 11. Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the respective disorders are aggravated by service-connected disease or injury, to include a service-connected lumbar strain. 12. If service-connected disease or injury aggravates the left shoulder and upper spine disorders, the examiner should identify the percentage of disability which is attributable to the aggravation, or explain why this is not possible. 38 C.F.R. § 3.310. (Continued on the next page) A complete rationale for any opinion expressed should be provided in the report. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson, 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.