Citation Nr: A25019294 Decision Date: 03/04/25 Archive Date: 03/04/25 DOCKET NO. 240206-414050 DATE: March 4, 2025 ORDER Entitlement to service connection for a left shoulder strain (claimed as left rotator cuff) is granted. REMANDED Entitlement to service connection for a respiratory disorder is remanded. FINDING OF FACT The evidence demonstrates that the Veteran's left shoulder strain was incurred in service. CONCLUSION OF LAW The criteria for service connection for a left shoulder strain (claimed as left rotator cuff) are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 2013 to September 2021. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2023 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), hereinafter Agency of Original Jurisdiction (AOJ), which in pertinent part, denied service connection for left shoulder and respiratory disorders. In the February 2024 Board Appeal: Notice of Disagreement, VA Form 10182, the Veteran elected the Direct Review docket. As such, the Board's review is limited to the evidence of record at the time of the issuance of the decision on appeal (November 8, 2023). The Board cannot consider evidence submitted during the period after the decision on appeal (on or after November 8, 2023). 38 C.F.R. § 20.301. However, because this case is being remanded, any evidence that is not considered by the Board at this time will be considered by the AOJ upon readjudication of these claims. The Board observes that while the Veteran appealed the claim for left rotator cuff condition, the Board has broadened the scope of the claim to encompass, generally, all left shoulder disorders diagnosed, and has taken jurisdiction over all such disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran contends that he has a left shoulder disorder caused by an in-service event, injury, or exposure. Specifically, he asserts manual labor and being required to lift 50 pounds and heavier overhead has caused continuous pain in his left shoulder that has never resolved. He asserts left shoulder pain has caused severe immobility of his arm and a high level of discomfort. See VA 21-526EZ, fully developed claim received June 15, 2023. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service treatment records demonstrate that in February 2020, the Veteran complained of a 5 to 6 months history of left shoulder pain. He denied any specific injury or history of trauma. Pain was noted in the anterior left shoulder only with activity, with overhead activities, and on extension and abduction of shoulder with activity. Pain was elicited during a Neer impingement test pain with flexion greater than 130 degrees. The pain was described as sharp, stinging, pain in the anterior arm with radiation into the front of the arm lasting for approximately 20 minutes. Pain was alleviated with rest and followed by soreness for 4 to 5 days after. Assessment was pain in the left shoulder; impingement vs. labral tear. He was given instruction for stretching, icing and ibuprofen and a referral for physical therapy was placed. A June 2021 service treatment record also documents a several month history of atraumatic intermittent left anterior shoulder pain, worse with internal rotation and reaching overhead. It was noted he was still able to do his job and that he only has pain on heavy lifting. Assessment was pain of the left shoulder joint, atraumatic anterior shoulder pain, suspect due to poor posture/impingement. X-ray of the left shoulder was unremarkable. He was instructed to do physical therapy twice a month and to follow-up if it was still problematic. During VA shoulder examination in June 2022, the Veteran reported left shoulder pain after lifting during service in 2016. He reported he was told it was a strain and that he did some physical therapy. He reported continued pain and grinding in the shoulder, aggravated with rotating, lifting and reaching. The examiner diagnosed left shoulder strain. The VA examiner did not provide an opinion as to whether the diagnosed left shoulder strain is related to any incident of the Veteran's military service, to include treatment for left shoulder pain therein. The Veteran was afforded an additional VA shoulder examination in August 2023. The VA examiner again diagnosed left shoulder strain. The examiner remarked that the Veteran does not have a diagnosis of rotator cuff tear or any other diagnosis to do with his rotator cuff. The examiner remarked that the Veteran claimed his rotator cuff because he thinks that is what is going on, but he has never had an MRI which could be the only thing that could tell if that is the case. The examiner recommend he follow up with his primary care provider for further work up of his shoulder pain. They noted he could benefit from MRI if pain continues. In a September 2023 medical opinion, the VA examiner opined that a left rotator cuff condition is unrelated to service because the Veteran does not have a diagnosis of anything to do with his rotator cuff of his left shoulder. The examiner did not provide any opinion regarding the etiology of Veteran's diagnosed left shoulder strain. On review and after resolving any doubt in the Veteran's favor, the Board find that entitlement to service connection for a left shoulder strain is warranted. Specifically, the limited service treatment records currently associated with the claims file demonstrate that the Veteran sought repeated treatment on at least two occasions, February 2020 and June 2021, for left shoulder pain. Less than one year following his discharge from service, during a June 2022 VA examination, he reported ongoing pain and symptoms related to his left shoulder since service, which were diagnosed as a left shoulder strain. The Veteran is competent to report left shoulder symptoms and when they began. Given the relatively short period of time between the Veteran's discharge from service in September 2021, and documentation of left shoulder complaints and diagnosis as left shoulder strain on VA examination in June 2022, the Board finds that the evidence establishes that the Veteran's current left shoulder strain was incurred in service. See 38 C.F.R. § 3.303(d). In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND The Veteran contends he has a respiratory condition caused by an in-service event, injury, or exposure. Specifically, he asserts that exposure to burn pits during deployments to Afghanistan and Kuwait has resulted in an inability to take a deep breath and feeling like he has decreased lung capacity. See VA 21-526EZ, fully developed claim received June 15, 2023. VA has conceded toxic exposure per 38 U.S.C. § 1119 during deployments to Afghanistan from November 2018 to April 2019, and United Arab Emirates from October 2020 to December 2020, and Qatar from April 12 to 14, 2021. See December 2022 toxic exposure memorandum. Thus, the Veteran is presumed exposed to burn pits and other toxins (BPOT). On August 4, 2023, the Veteran was afforded a VA respiratory conditions examination. He reported he sometimes has shortness of breath and that his deep breaths are not as deep as they used to be. He reported he has never been diagnosed with any respiratory issues. It appears that a pulmonary function test was scheduled for August 24, 2023, but the Veteran missed the appointment. Report of Contact on August 25, 2023, indicates that the Veteran missed the pulmonary function testing the day prior due to a miscommunication, and he requested the testing be rescheduled. In a September 2023 VA medical opinion, the same VA examiner opined that the claimed respiratory condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. They reasoned that the Veteran does not have any respiratory diagnosis. The examiner remarked that a pulmonary function test (PFT) was ordered, but the Veteran no showed the appointment so it would not be rescheduled. Despite the Veteran's competent and credible reports of persistent symptoms of an inability to take a deep breath and feeling like he has decreased lung capacity, the examiner concluded that there are no symptoms or evidence of anything that would warrant a diagnosis at this time and a nexus has not been established. On review, the Board finds the August 2023 VA respiratory conditions examination and September 2023 opinion are inadequate to decide the claim. Indeed, the Veteran has provided good cause of a misunderstanding as his reasoning for missing the scheduled pulmonary function test that is necessary to determine whether he has a current respiratory condition that may be related to his military service, to include toxic exposures therein, as alleged. See 38 C.F.R. § 3.655. As such, a remand is necessary to afford the Veteran a new examination that is adequate to decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Finally, the Board notes that it does not appear that the Veteran's complete service treatment records have been obtained and associated with the claims file. Indeed, there are no reports of medical examinations or reports of medical history, to include at enlistment and separation, associated with the claims file for review. A Service Treatment Record (STR) Certification from the Air Force STR Processing Center dated October 21, 2021, was associated with the claims file on June 15, 2022, and again on November 16, 2023. The Board notes, however, that the Veteran's DD Form 214 indicates that upon discharge he was transferred to the United States Air Force Reserve. There is no indication that the Veteran's service records have been requested from the United States Air Force Reserve. Additionally, there is not a formal finding of unavailability of the Veteran's complete service treatment records of record. As such, additional development is necessary to ensure that all available service records have been obtained and associated with the claims file for review. The matters are REMANDED for the following action: 1. Request from all appropriate records repositories, including the United States Air Force Reserve, the Veteran's complete service treatment records and service personnel records. Any negative search should be noted in the record and communicated to the Veteran. Additionally, if the requested records do not exist or cannot be obtained and it is determined that further attempts would be futile, then a memorandum of unavailability should be drafted and added to the record. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine whether the Veteran has a current respiratory disorder related to service or a service-connected disability. The claims file must be provided to and reviewed by the examiner in conjunction with the examination. All tests deemed necessary, including a pulmonary functions test (PFT), should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner must identify any and all respiratory disorders found. In assessing whether the Veteran has any current respiratory disorder, the examiner must address the Veteran's reports of having an inability to take a deep breath and feeling like he has decreased lung capacity. If the examiner is unable to provide a diagnosable respiratory disorder, the examiner must additionally contemplate whether any of the Veteran's claimed and present symptoms represent a functional impairment in earning capacity, such that a current respiratory disability exists. If such is not found, the examiner must explain in detail the conclusions reached in this regard. Thereafter, for any diagnosed respiratory disorders found (or any functional impairment in earning capacity found such that a current respiratory disability is present), the examiner must then opine whether such began in service, within one year of discharge therefrom, or is otherwise the result of military service, to include the Veteran's conceded toxic exposure risk activities (TERAs) due to his service in Afghanistan, Kuwait, and UAE, and particularly exposure to burn pits and other toxins (BPOT). In providing this opinion, the examiner is asked to consider total potential exposure through all applicable military deployments and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. If the examiner cannot find that any diagnosed respiratory disorder/current respiratory disability found is directly related to military service, the examiner should then opine whether such is either (a) caused by, or (b) aggravated (i.e., worsened) by the Veteran's service-connected allergic rhinitis. In addressing the above, the examiner must address the Veteran's lay statements regarding onset of symptomatology as well as any statements regarding continuity of symptomatology since onset and/or since discharge from service. An opinion with detailed supporting rationale must be provided for all conclusions reached. The examiner is also reminded that a separate and distinct opinion for all theories of entitlement must be provided, particularly secondary causation and secondary aggravation. MARTIN B. PETERS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Rogers, 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.