Citation Nr: 23014604 Decision Date: 03/10/23 Archive Date: 03/10/23 DOCKET NO. 20-21 481 DATE: March 10, 2023 REMANDED Entitlement to a service connection for right shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from May 1968 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision by a Department of Veteran Affairs (VA) Regional Office (RO). Regrettably, the claim must be remanded due to the RO's failure of to satisfy VA's statutory duty to assist. See 38 U.S.C. § 5103A. Entitlement to a service connection for right shoulder disability (previously claimed as right shoulder injury) is remanded. The Veteran seeks service connection for his right shoulder disability, asserting that it is due to an in-service injury he incurred to his right shoulder in either late 1971 or early 1972. See March 2019 Notice of Disagreement (NOD); August 2020 Response to Supplemental Statement of the Case (SOC). For the following reasons, the Board finds that VA has a duty to provide a medical opinion as to the likelihood that the Veteran's right shoulder disability may be linked to the right shoulder injury he contends he incurred during active service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159 (c). VA's statutory duty to assist includes obtaining a VA medical examination and medical opinion when certain criteria are met. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). These criteria require, in pertinent part, that "the information and evidence of record does not contain sufficient competent medical evidence to decide the claim" and that: (i) the record contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of disease; (ii) the evidence establishes that the veteran suffered an in-service event, injury or disease; and (iii) the evidence indicates that the claimed disability or symptoms may be associated with the established in-service event, injury or disease or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. 79, 85-86 (2006). Whether an examination is necessary requires the Board to take into consideration "all information and lay or medical evidence." 38 U.S.C. § 5103A(d)(2). Here, the record shows that neither a VA medical examination regarding the current diagnosis of the Veteran's right shoulder disability, nor a medical opinion regarding the etiology of the right shoulder disability have been obtained. Further, the Veteran's VA treatment records indicate that he has a current diagnosis of a right shoulder disability. See June 23, 2018, VA Medical Treatment Record (MTR). The June 2018 VA MTR specifically notes that the Veteran's right shoulder X-ray "indicates a previous injury to the shoulder with small bone spurs and evidence of some arthritic changes." Id. Although service treatment records do not contain complaints or diagnosis of or treatment for a right shoulder condition, the Veteran's competent lay statements indicate that the Veteran's right shoulder injury may be related to the reported in-service right shoulder injury. Specifically, the Veteran contends that while serving as a Sargent of the Guard for his squadron MACS-4, in Okinawa, Japan, he injured his right shoulder while assisting in the rescue of two servicemembers who were stuck in a cave with rising, rushing water. See March 2019 NOD. The Veteran contends that he attempted to lift a servicemember over the rushing water with a rope. Id. The Veteran contends that the servicemember then began to fall backwards causing the Veteran to pull on the rope at which point he felt pain in his right shoulder. Id. The Veteran contends that the pain he experienced in the right shoulder persisted and that he reported it the next day to the Corpsman who determined that it was "likely a sprain" and offered the Veteran "some pain medication." Id. The Veteran contends that he declined the pain medication. Id. The Veteran also contends that he has not incurred a subsequent injury to his right shoulder such as what he experienced with the in-service right shoulder injury. Id. For the purpose of this remand, the Board finds that the Veteran's statements are credible because they are consistent with the evidence of record. For example, the Veteran had service in Okinawa, Japan, in 1971, and there is no evidence of record that contradicts the Veteran's lay statements. Therefore, the criteria as discussed above are met and VA's duty to assist applies. Accordingly, the Board finds that a medical opinion is necessary to assist in the development of the Veteran's claim. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA medical examination and medical opinion to determine the nature and etiology of his right shoulder disability. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination, if necessary, or provide a medical opinion by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's right shoulder disability. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. The need for an in-person examination is left to the discretion of the medical professional. The medical examiner is asked to opine as to the following: Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's right shoulder disability is related to the right shoulder injury the Veteran contends he incurred while assisting in the rescue of a service member between 1971-1972. In rendering the medical opinion, the medical examiner should consider all of the medical evidence including the Veteran's statements of record and specifically address the June 23, 2018, VA X-ray which "indicates a previous injury to the shoulder with small bone spurs and evidence of some arthritic changes." A complete rationale must be provided for any opinions expressed and to achieve this, the medical professional must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. (Continued on the next page) The medical examiner must not solely rely on the fact that the service treatment records do not contain complaints or diagnosis of or treatment for a right shoulder condition. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.E. Brand, 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.