Citation Nr: A25035391 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210819-179993 DATE: April 16, 2025 REMANDED Service connection for a right shoulder injury is remanded. Service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served in the United States Army from May 26, 2010 to July 23, 2010, with additional service of an unverified nature and duration in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) from an August 2021 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). The law creates a new framework for veterans dissatisfied with VA's decision on their claim to seek review, and this decision has been written consistent with the new AMA framework. In December 2020, VA received a VA Form 21-0966, (Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC). In January 2021, the Veteran submitted a VA Form 21-526EZ, (Initial Claim Application), seeking service connection for right shoulder injury and sleep apnea, among other claims not subject to the present appeal. In May 2021, the RO issued a rating decision denying service connection for both right shoulder injury and sleep apnea. In June 2021, VA received a VA Form 20-0996, Higher-Level Review Request, regarding the May 2021 rating decision. In August 2021, an informal higher level review conference was conducted, and shortly thereafter, the RO issued a Higher-Level Review Rating Decision, again denying the claims of right shoulder injury and sleep apnea. No duty-to-assist error pertaining to these claims were identified during the higher-level review. In August 2021, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), electing the Evidence Submission docket regarding the August 2021 rating decision. See August 2021 Notice of Disagreement. Therefore, the Board may only consider the evidence of record at the time of the May 2021 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. See 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of right shoulder injury and sleep apnea, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. See 38 C.F.R. § 3.103(c)(2)(ii). 1. Service connection for a right shoulder injury is remanded. 2. Service connection for sleep apnea is remanded. The Veteran contends his right shoulder injury and sleep apnea are a result of his military service. In the August 2021 Higher Level Review Conference, the Veteran's representative contended that the Veteran should have been afforded VA medical examinations and medical opinions to determine whether there was a medical nexus between the Veteran's military service and his right shoulder injury and sleep apnea. As an initial matter, the RO made the following favorable findings: The Veteran has been diagnosed with a disability. Post-service treatment records from Commend Health dated December 17, 2020, show a diagnosis of right shoulder recurrent instability. There being no clear and unmistakable error, the Board is bound by these favorable findings. See 38 C.F.R. § 3.104(c). Pursuant to 38 C.F.R. § 20.802(a), the Board's authority to remand a claim is limited to instances requiring (1) correction of an error on the part of the AOJ to satisfy its duties under 38 U.S.C. § 5103A, if the error occurred prior to the date of the AOJ decision on appeal, or (2) the correction of any other error by the AOJ in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the Veteran's claim. Following a complete review of the electronic claims file, the Board finds that the below referenced matter must be remanded for the correction of a predecisional duty-to-assist error that occurred prior to the promulgation of the respective rating decision on appeal, as addressed below. First, the evidentiary record reflects that the Veteran served in the Army National Guard, for which verification and associated records of certain periods of service are outstanding. Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101 (24), 106, 1131. Such a determination cannot be made without ascertaining the scope of the Veteran's service. The record establishes that the Veteran served in the Army from May 26, 2010 to July 23, 2010. See DD-214. The record further establishes service in the Army, Army National Guard, and Texas Army National Guard from March 2009 to July 2013. See NGB Form 22. For members of the reserve components of the Armed Forces and the Army National Guard, qualifying active duty includes service on active duty under a call or order to active duty under 10 U.S.C. § 12301(d). The record shows that the Veteran was ordered to Active Duty for Operational Support - Reserve Component (ADOS-RC) from July 11, 2009 to September 30, 2009 pursuant to 10 U.S.C. § 12301(d). See July 2009 Title 10 Order. This active duty service from July 11, 2009 to September 30, 2009 is corroborated by the Veteran's August 2019 Army National Guard Retirement Points History Statement. The record reflects that in January 2021, efforts were undertaken to validate the Veteran's National Guard record. See March 2021 VA Form 21-3101 Request for Information Response (Information Request Response). However, the RO received the response that such service could not be validated as there were no official military documents in the Veteran's VBMS file to do so. Id. The March 2021 Information Request Response instructed that if any official military documents were obtained and uploaded into VMBS, to resubmit the request. Id. Subsequent military personnel records were associated with the Veteran's claim file during the appeal period however any effort to further validate or otherwise ascertain the scope of reserve service is not reflected, nor is there any indication that the request was resubmitted. The necessity to ascertain the scope of the Veteran's reserve service is underscored by the RO's errant finding that the Veteran did not have active military service in September 2009 despite the Veteran's activation from July 11, 2009 to September 30, 2009. See August 2021 Rating Decision. As such, the Veteran's failure to do so constitutes a predecisional error that must be corrected on remand. Next, the AOJ failed to obtain relevant and outstanding private medical records. In January 2021, the Veteran submitted his Initial Claim Application, private medical records, and a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (Medical Authorization). The January 2021 Medical Authorization listed three private medical facilities and the date ranges of treatment. Unfortunately, the medical form was not signed by the Veteran. See January 2021 Medical Authorization. The Board observes that the Veteran provided private medical records that encompassed the date ranges identified in the January 2021 Medical Authorization. However, the Veteran listed dates of service for Hospitality Health ER from January 2017 to December 2020, and only provided records from that facility ranging from May 2019 and August 2019. In April 2021, the RO send notice to the Veteran that additional information was needed to substantiate his claim and requested the Veteran provide medical records to any post-service treatment and the Veteran did not provide a response. See April 2021 Subsequent Development Letter. VA's duty-to-assist is a two-way street, and the Veteran cannot wait passively in those situations where his assistance to VA is necessary. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). However, here, the Veteran proactively provided an unsigned medical authorization with detailed information to VA prior to the RO's notice seeking additional information, and the record does not indicate that the Veteran was aware of the error in order to correct it. The Veteran contends that he should have been afforded a medical examination and opinion regarding his sleep apnea, however the AOJ's failure to obtain outstanding and relevant private medical records precludes the Board from adjudicating the issue of whether a current disability exists. As such, the AOJ failed to satisfy a regulatory or statutory duty, whose correction would have a reasonable possibility of aiding in substantiating the Veteran's claim. Further, the AOJ failed to obtain a medical opinion regarding his right should injury. VA must provide a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the Veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here, it is conceded that the Veteran has a right shoulder disability. In a December 2020 private medical record, the examiner assessed the Veteran with recurrent instability and noted that the Veteran "apparently, has had some subsequent instability" since his injury in the military. See December 2020 Command Health private treatment record. A September 2009 urgent care treatment record shows that the Veteran's chief complaint was the Veteran was experiencing right shoulder pain with movement wafter running into another player during a game of basketball. The Board observes that the second page of the 2009 urgent care record reflects left shoulder pain, as well as an illegible notation as to whether left or right shoulder bruising. Additionally, a September 2009 sick slip indicates left shoulder bursitis. The Board resolves all doubt in favor of the Veteran regarding this inconsistency. 38 U.S.C. § 5107. As established, the Veteran was ordered to active duty for the period of July 11, 2009 to September 30, 2009. Thus, the low threshold of McLendon had been met prior to the promulgation of the May 2021 rating decision and the AOJ's failure to obtain a medical opinion constitutes a predecisional error that must be corrected on remand. The matters are REMANDED for the following action: 1. The AOJ must obtain the Veteran's complete service personnel records from the Department of the Army, the Defense Finance and Accounting Service (DFAS), the Texas National Guard and any other appropriate record repository from the totality of his Reserve service. 2. Using the evidence obtained from the above actions, the AOJ must create a summary of all dates of each period of ACDUTRA and INACDUTRA served by the Veteran and associate it with the claims file. A listing of the Veteran's retirement points for his Reserve service will NOT suffice to address this remand directive. 3. The AOJ should provide the Veteran with several VA Forms 21-4142 and instructions to complete such in a way that would allow attempts to be made to obtain any pertinent private treatment records. 4. The AOJ must obtain the Veteran's private medical treatment records identified by the Veteran, to include the providers identified in the January 2021 VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs currently associated with the file, and any provider otherwise identified by the Veteran subject to his completed VA Forms 21-4142. The AOJ is requested to make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 5. After all the available requested records are associated with the Veteran's claims file, the AOJ is requested to obtain a VA medical opinion and examination from an appropriate examiner to address the etiology of the Veteran's conceded right shoulder disability. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's right shoulder disability was incurred during or caused by active service? The examiner is advised that the Veteran is competent to describe symptoms that are observable by a lay person, such as pain. If the examiner rejects the Veteran's reports regarding his symptoms, the examiner must provide a reason for doing so. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is approximately balanced such that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 6. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. 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.