Citation Nr: 24001200 Decision Date: 01/08/24 Archive Date: 01/08/24 DOCKET NO. 20-25 000 DATE: January 8, 2024 ORDER Service connection for left shoulder condition is denied. REMANDED Service connection for back issues-mild pain is remanded. An initial compensable rating prior to October 19, 2017, and higher than 20 percent thereafter for right shoulder strain is remanded. Service connection for a right upper extremity neurological condition is remanded. An earlier effective date for the grant of service connection for right shoulder strain is remanded. FINDING OF FACT The evidence of record persuasively weighs against finding that a left shoulder condition began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for left shoulder condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Texas Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim was most recently adjudicated by the Agency of Original Jurisdiction (AOJ) in a June 2020 Supplemental Statement of the Case (SSOC). Since that time, new evidence has been associated with the claims file including VA outpatient records and VA examinations. The evidence was generated by VA and not provided by the Veteran. The AOJ has not reviewed the evidence in the first instance of this claim, and the "automatic" waiver of such review by the AOJ for claims under appeal applies only to evidence submitted by the Veteran and not evidence generated by VA. 38 U.S.C. § 7105(e). In January 2022, the Veteran's representative informed the Board that he waived AOJ consideration of the new evidence. Therefore, the Board may proceed to adjudicate this matter. Left Shoulder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has filed a claim seeking service connection for a left shoulder condition. For the following reasons, the Board finds that service connection is not warranted. Private treatment records include a diagnosis of impingement syndrome in the left arm. The Board finds this to satisfy the first element of service connection. Turning to the second element, the claims file lacks evidence of a left shoulder injury during the Veteran's service. The evidence available includes no contentions of a left shoulder injury during service or the Veteran experiencing left shoulder pain since his service. The Veteran's representative has not raised any arguments suggesting how the Veteran's current left shoulder condition could be related to service. Accordingly, the Board finds the second element of service connection to not be satisfied. Accordingly, the Board finds that the evidence of record weighs persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for left shoulder condition is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Back The Board cannot make a fully-informed decision on the issue of service connection for a back conition because no VA examiner has opined whether the Veteran's current back condition is related to an injury during his service. The Veteran contends that he injured his back in the same injury that led to the grant of service connection for his right shoulder disability. Private treatment records show that the Veteran has had chronic back pain since September 1998. A remand is necessary to obtain a VA examination and opinion on whether the Veteran's current back condition is related to his in-service injury. Right Shoulder Strain In a December 2022 VA treatment record, the Veteran asserted that his right shoulder strain has increased in severity since he was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected right shoulder strain. VA treatment records state that the Veteran is receiving care from a private orthopedist for his right shoulder strain. A remand is required to allow VA to obtain authorization and request these records. Right Upper Extremity Neurological Condition The Veteran's representative contends that remand is necessary to obtain a VA examination to ascertain whether the Veteran has a right upper extremity neurological condition related to his service-connected right shoulder strain. At his September 2015 VA examination, the Veteran reported tingling in his right shoulder. The Veteran reported numbness at his October 2017 VA examination. The Veteran reported burning pain and tingling at his June 2021 VA examination. The Board "is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability." Bailey v. Wilkie, 33 Vet. App. 188, 203-04 (2021). Here, the Board finds that a claim of secondary service connection for a right upper extremity neurological condition has been reasonably raised. As such, the Board will assume jurisdiction of the claim. The Board cannot make a fully-informed decision on the issue of service connection for a right upper extremity neuroligcal condition because no VA examiner has opined whether the Veteran's service-connected right shoulder strain has caused or aggravated a right upper extremity neurolgical condition. As such, a remand is necessary to obtain a VA examination. Right Shoulder Strain Earlier Effective Date Regarding the claim of entitlement to an earlier effective date for the grant of service connection of a right shoulder strain, the Veteran submitted a timely notice of disagreement with a September 2015 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.904(c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for his private orthopedist. Make two requests for the authorized records from the private orthopedist, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination for his claimed back disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Is the Veteran's back disability at least as likely as not related to service, including an in-service injury from lifting a 25 mm gun during service? Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right shoulder strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for a VA examination for his claimed right upper extremity neurological condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: Is a right upper extremity neurological condition at least as likely as not proximately due to the Veteran's service-connected right shoulder strain? Is a right upper extremity neurological condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected right shoulder strain? Provide a rationale to support the opinion. 5. Send the Veteran and his representative a statement of the case that addresses the issue of an earlier effective date for the grant of service connection for a right shoulder strain. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.