Citation Nr: 22040263 Decision Date: 07/14/22 Archive Date: 07/14/22 DOCKET NO. 16-59 608 DATE: July 14, 2022 REMANDED Entitlement to service connection for a left shoulder disability, status-post arthroscopic rotator cuff repair, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Marine Corps from June 1991 to July 2000 and in the Army from January 2003 to January 2005, with additional periods of active reserve service in the South Carolina National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2022, the Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge. A transcript is on record. As a preliminary matter, the Board observes the issue was characterized as one requiring new and material evidence in the June 2015 rating decision. However, at the time of the prior November 2014 rating decision, the Veteran had not identified an in-service left shoulder injury potentially linked to his current disability nor alleged during what period of service he injured his left shoulder. Significantly, in a July 2015 Notice of Disagreement (NOD) responding to the June 2015 rating decision, the Veteran explained his left shoulder injury occurred while serving in the Marine Corps. As this explanation contains new evidence, raises a reasonable possibility of substantiating the Veteran's claim for service connection for a left shoulder disability, and was received within one year of the November 2014 rating decision, the November 2014 rating decision did not become a final decision. 38 C.F.R. § 3.156. Thus, new and material evidence is not required for the Board to consider the claim on its merits. In making this finding, the Board also observes the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). At a minimum, the statement contained in the Veteran's July 2015 NOD provided a more complete picture surrounding the origins of his claimed disabilities and thus constitutes new and material evidence sufficient to render the November 2014 rating decision not final. Entitlement to service connection for a left shoulder disability, status-post arthroscopic rotator cuff repair, is remanded. The Veteran contends he tore his left shoulder rotator cuff in 1998 while serving on active duty in the Marines Corps and that the injury progressively worsened to the point of requiring arthroscopic repair in 2013. A remand is required to obtain outstanding service treatment records and a VA examination on the etiology of the Veteran's claimed disability before adjudication of the claim. At his January 2022 Board hearing, the Veteran explained he underwent physical therapy and received medication for left shoulder pain following a 1998 injury. Service medical records confirm a 1998 left shoulder rotator cuff strain diagnosed via manipulation of the arm, not imaging. He further reported at his hearing experiencing left shoulder pain since the 1998 injury and mentioning the lingering pain to medical personnel while in the National Guard, but not while in the Marine Corps or Army, choosing instead to treat his pain with the medication he was given at the time of the injury. Significantly, the record shows the Veteran participated in National Guard training days from at least 2009 to 2020. However, the most recent National Guard treatment records in the record are from 2008 and there has been no formal finding that further National Guard treatment records are unavailable. As there are likely outstanding National Guard treatment records that could substantiate the Veteran's claim for service connection for the claim left shoulder disability, a remand is required to obtain these outstanding records. As these records are federal records, VA must make as many attempts that are necessary to obtain the relevant records. 38 C.F.R. § 3.159 (c)(2). VA may only cease searching for these records if it is determined that they do not exist or that further attempts to obtain them would be futile. Id. In that case, VA must notify the claimant of these formal findings that the records are unavailable and that further attempts to obtain them have been deemed futile. 38 C.F.R. § 3.159 (e)(1). Moreover, a remand is separately required to provide the Veteran an adequate VA examinationonce VA undertakes efforts to provide a VA examination, it must ensure that it is an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, in June 2015, a VA examiner reviewed the Veteran's record and opined the Veteran's current left shoulder disability is less likely than not related to the 1998 injury. Part of the examiner's negative rationale includes references to an October 2007 injury. However, the Veteran does not contend his current left shoulder disability stemmed from this October 2007 injury. Notably, the record indicates the October 2007 injury was to the Veteran's right shoulder, not his left. See June 2017 Third Party Correspondence (documenting acceptance of a worker's compensation claim for an October 2007 injury to the Veteran's right shoulder). Although a July 2019 Appellate Brief submitted by the Veteran's representative mentions the October 2007 injury in support of the Veteran's claim for a left shoulder disability, not once has the Veteran himself contended that his current left shoulder disability was caused or aggravated by or has anything to do with an October 2007 injury. See August 2014 VA Form 21-526EZ, Fully Developed Claim; January 2015 VA Form 21-526EZ, Fully Developed Claim; July 2015 NOD; November 2016 VA Form 9; and, January 2022 Board hearing transcript. Thus, the Board finds the July 2019 Appellate Brief's mention of the October 2007 injury to be a mistake and the June 2015 examiner's negative rationale to be at least partially based on an inaccurate factual premise, which renders the opinion inadequate for service connection purposes. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board acknowledges the March 2022 private opinion submitted by the Veteran in support of this claim for service connection; however, the opinion specifically excludes commentary on whether the Veteran's current left shoulder disability is related to his military service. Accordingly, the claim is remanded to obtain outstanding National Guard treatment records and an adequate VA examination on the etiology of the Veteran's current left shoulder disability. The matter is REMANDED for the following actions: 1. Obtain the Veteran's complete South Carolina National Guard service treatment records and service personnel records from the National Personnel Records Center (NPRC), Defense Finance and Accounting Service (DFAS), the Department of the Army, the Adjutant Generals of the South Carolina Army National Guard, and any other appropriate record repository. VA may only cease searching for these records if it is determined that they do not exist or that further attempts to obtain them would be futile. In that case, VA must notify the claimant of these formal findings that the records are unavailable and that further attempts to obtain them have been deemed futile. 38 C.F.R. § 3.159 (e)(1). 2. Then, schedule the Veteran for a VA examination on the etiology of his current left shoulder disability. The claims file must be made available to the examiner and reviewed in conjunction with the examination. All indicated tests, if any, should be conducted. A complete history should be elicited from the Veteran. After a review of the claims file and examination of the Veteran, the examiner must provide an opinion on whether it is at least as likely as not (approximately 50 percent probability or greater) that the Veteran's current left shoulder disability, status-post arthroscopic rotator cuff repair, had its onset during is or otherwise etiologically related to his military service, to include the 1998 in-service left shoulder rotator cuff strain. In rendering this opinion, the examiner must address the Veteran's argument that his 1998 left shoulder rotator cuff strain was not fully diagnosed as a rotator cuff tear at the time, as no contemporaneous images of the injury were obtained. A complete rationale must be provided for any opinion rendered. 3. Then, readjudicate the claim. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, 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.