Case A25038858

C. CRAWFORD · 2025 · Case ID: A25038858

MIXED

Summary

The Veteran, a Marine Corps Veteran who served from March 2014 to July 2018, appeals the denial of an earlier effective date for temporomandibular joint (TMJ) syndrome and the denial of service connection for a psychiatric disorder, including insomnia and major depressive disorder with anxious distress. The Veteran also sought an increased rating for TMJ. The Board denied the earlier effective date for TMJ, finding the claim was filed too late after service and no extension was requested. The Board denied an increased rating for TMJ, finding the current 10% rating adequately contemplated the Veteran's reported symptoms and examination findings, which did not meet the criteria for a higher evaluation under Diagnostic Code 9905. However, the Board granted service connection for a psychiatric disorder on a secondary basis, finding it was aggravated by the Veteran's service-connected bilateral knee disability. The Board relied on VA opinions from October 2021 and January 2022, which found a nexus between the knee condition and the psychiatric disorder, specifically insomnia. Private medical opinions were given minimal weight due to conclusory findings. The Board remanded claims for left and right shoulder conditions, finding a duty to assist error occurred when the AOJ denied service connection without obtaining a VA examination to evaluate the Veteran's symptoms and a private opinion linking them to service.

Rationale

Claim for earlier effective date denied due to late filing after service.; Increased rating denied as current 10% rating adequately contemplates symptoms and findings.; Veteran's TMJ did not meet criteria for higher rating under DC 9905.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

9905

Docket No.

240205-415921

Full Decision Text

Citation Nr: A25038858
Decision Date: 04/29/25 Archive Date: 04/29/25

DOCKET NO. 240205-415921
DATE: April 29, 2025

ORDER

Entitlement to an effective date prior to October 5, 2021, for the award of service connection for temporomandibular joint syndrome (TMJ) is denied.

Entitlement to service connection for an acquired psychiatric disorder, to include insomnia and major depressive disorder with anxious distress, is granted.

Entitlement to an initial rating in excess of 10 percent for TMJ is denied.

REMANDED

Entitlement to service connection for left shoulder condition is remanded.

Entitlement to service connection for right shoulder condition is remanded.

FINDINGS OF FACT

1. VA received the Veteran's claim of entitlement to service connection for TMJ on October 5, 2021. There is no earlier formal or informal claim for service connection for TMJ.

2. The Veteran's psychiatric disorder, to include insomnia and major depressive disorder with anxious distress, is aggravated by his service-connected bilateral knee disability.

3. The Veteran's TMJ did not approximate interincisal range of 30 to 34 mm maximum unassisted vertical opening with dietary restrictions to mechanically altered foods or 21 to 29 mm of maximum unassisted vertical opening without dietary restrictions.

CONCLUSIONS OF LAW

1. The criteria for an effective date earlier than October 5, 2021, for the award of service connection for TMJ have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400.

2. The criteria for service connection for an acquired psychiatric disorder, to include insomnia and major depressive disorder with anxious distress, as secondary to bilateral knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

3. The criteria for an initial rating in excess of 10 percent for TMJ have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.150, Diagnostic Code (DC) 9905.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from March 10, 2014 to March 9, 2018, and from March 25, 2018 to July 19, 2018.

This appeal is being processed under the modernized review system, commonly referred to as the "AMA," as established by the Veterans Appeals Improvement and Modernization Act of 2017. 115 Pub. L. No. 55, 131 Stat. 1105.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2023 rating decision issued by a Department of Veterans Affairs (VA) regional office (RO), an agency of original jurisdiction (AOJ).

In the May 2023 rating decision, the AOJ favorably found that new and relevant evidence had been received to warrant readjudication of the claims. 38 C.F.R. § 3.104(c).

VA received the Veteran's VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in January 2024. The Veteran elected the Evidence docket. Therefore, the Board may only consider the evidence of record at the time of the May 2023 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his attorney with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal 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. 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
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. 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. Because the Board is remanding the claims of entitlement to service connection for bilateral shoulder condition, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

The Veteran's claim of entitlement to service connection for insomnia and depression has been recharacterized to encompass all diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The Veteran has separate AMA appeals pending before the Board. Those appeals will be addressed in separate Board decisions.

This appeal has been?advanced on the docket.?38?C.F.R. §?20.902.??

Entitlement to an earlier effective date for TMJ.

The Veteran contends that an earlier effective date for the award of service connection for his TMJ is warranted. See January 2024 VA Form 10182. For the reasons that follow, the claim must be denied.

Generally, the effective date of an evaluation and award of compensation based on an original claim; a claim reopened after final disallowance; or a claim for an increase will be the date the claim was received or the date the entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, an effective date from the day following separation from active service or the date the entitlement arose may be assigned if a claim is received within one year after separation from service. 38 C.F.R. § 3.400(b)(2).

Presently, a "claim" is defined as a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement to a specific benefit under the laws administered by VA. 38 C.F.R. § 3.1(p), 3.1(p) (2014) (previously a "claim" was defined more broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit). A claim for VA compensation must be submitted on an application form prescribed by the Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.151(a).

Effective March 24, 2015, VA amended its regulations to require that all claims be filed on standardized forms prescribed by the Secretary. 79 Fed. Reg. 57660 (Sep. 25, 2014). In doing so, the non-standard informal claims process prescribed under 38 C.F.R. § 3.155(a) (2014) was replaced with a standard form on which to record an intent to file a claim for benefits. However, for claims and appeals filed prior to March 24, 2015, this amendment is not applicable.

The May 2023 rating decision granted service connection for TMJ effective October 5, 2021. The Veteran generally disagrees with the effective date of the award. See January 2024 VA Form 10182.

The Veteran's claim for service connection for TMJ was received on October 5, 2021. See VA 21-526EZ, Fully Developed Claim. The Veteran's claim was received more than one year after separation from service, which occurred in July 2018.

A review of the record also shows that VA received the Veteran's Intent to File a Claim on August 31, 2020. See VA 21-0996, Intent to File. On September 4, 2020, in a letter to the Veteran, VA acknowledged the Veteran's intent to file a claim for compensation. See Notification Letter. The letter further advised the Veteran that if a completed application was received within one year and the Veteran is entitled to benefits, VA may be able to compensate the Veteran from the date of the intent to file. The record does not contain any formal or informal claims for service connection for TMJ prior to March 24, 2015, or any formal claims for service connection thereafter until the October 5, 2021 claim. The record does not reflect that the Veteran requested an extension of the time limit for filing a complete claim prior to or concurrent with his October 5, 2021 claim, or indeed at any point prior to the May 2023 rating decision that adjudicated and granted his claim for service connection. See 38 C.F.R. § 3.109(b).

Accordingly, since a complete claim for service connection for TMJ was not filed within one year of receipt of the August 31, 2020 intent to file a claim, and the Veteran did not request an extension of the time limit to file a complete claim, the effective date cannot be earlier than October 5, 2021, the date of claim.

Considering the above, the AOJ has assigned the earliest possible effective date for the award of service connection for TMJ; therefore, an effective date prior to October 5, 2021, is not warranted. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

Entitlement to service connection for an acquired psychiatric disorder, to include insomnia and major depressive disorder with anxious distress.

The Veteran seeks entitlement to service connection for a psychiatric disorder. For the reasons that follow, the Board finds that service connection on secondary basis is warranted.

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Service connection may also be established on a secondary basis for a disability that is caused or aggravated by a service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a), (b). Establishing service connection on a secondary basis requires competent and credible evidence demonstrating (1) the existence of a current disability; (2) a service-connected disability; and (3) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). For secondary service connection purposes, the term "aggravation" means any incremental increase in the severity of the claimed disability due to a service-connected disability, regardless of permanence. Ward v. Wilkie, 31 Vet. App. 233 (2019).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Turning to the evidence of record, in the May 2023 rating decision, the AOJ favorably found that the Veteran has a current diagnosis of major depressive disorder. As no clear and unmistakable error has been shown by the evidence of record, the Board is bound by that finding. 38 C.F.R. § 3.104(c). Thus, the current disability element of the claim has been met. Further, the Veteran is service connected for bilateral knee disability.

The Veteran initially underwent a VA mental disorders examination in October 2021. He was diagnosed with insomnia disorder and major depressive disorder at that time. The examiner noted that these diagnoses interact with depression and anxiety disrupting sleep and sleep disruption worsening depression and anxiety. The examiner rendered a positive secondary service
of record, in the May 2023 rating decision, the AOJ favorably found that the Veteran has a current diagnosis of major depressive disorder. As no clear and unmistakable error has been shown by the evidence of record, the Board is bound by that finding. 38 C.F.R. § 3.104(c). Thus, the current disability element of the claim has been met. Further, the Veteran is service connected for bilateral knee disability.

The Veteran initially underwent a VA mental disorders examination in October 2021. He was diagnosed with insomnia disorder and major depressive disorder at that time. The examiner noted that these diagnoses interact with depression and anxiety disrupting sleep and sleep disruption worsening depression and anxiety. The examiner rendered a positive secondary service connection nexus opinion, attributing the Veteran's insomnia to his service-connected bilateral knee disability. The examiner cited medical records and studies in support of this opinion.

In January 2022, a VA opinion addressing aggravation for secondary service connection was obtained. The examiner opined that the Veteran's insomnia was at least as likely as not aggravated beyond its natural progression by his service-connected bilateral knee patellofemoral syndrome. The examiner noted that the Veteran did not have reported insomnia or any clinical notes of insomnia diagnosis prior to service. The examiner also noted that on the most recent VA examination the Veteran reported that his knee issues impair his functioning, to include his ability to sleep which is consistent with research on chronic pain interfering with sleep. The examiner also opined that the Veteran has continued to have mental health problems, and he experiences some sleep issues and depression due to his medical conditions of his knees; but there is no indication that he has anxiety that has worsened because of the knee pain.

The Board finds the October 2021 and January 2022 VA opinions probative as the opinions are supported by rationales based on an accurate medical history with clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

An October 2022 private opinion from Dr. M.B.S. is of record. Dr. M.B.S. opined that it is at least as likely as not that the Veteran's insomnia was substantially aggravated by physical pain he experienced in service. Dr. M.B.S. noted that the Veteran has a history of an adjustment disorder with anxiety and depression as well as insomnia, which is a common finding with each of said psychiatric conditions. Dr. M.B.S. noted that the Veteran reported experiencing significant and ongoing insomnia while in service due to pain he was feeling in his knees, shoulders, and thoracolumbar spine.

A November 2022 private psychiatric evaluation and opinion from Dr. J.H.P. is also of record. Dr. J.H.P. diagnosed the Veteran with major depressive disorder. Dr. J.H.P. opined that the Veteran psychiatric disorder was at least as likely as not exacerbated by events he was exposed to during service.

The Board notes that while the October 2022 and November 2022 private opinions offer clear conclusions, the findings do not appear to be supported by data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez, 22 Vet. App. at 301. Significantly, the opinions are somewhat conclusory and largely based on the Veteran's self-reported history. Thus, the Board affords the October 2022 and November 2022 private opinions minimal probative value.

A review of the Veteran's post-service treatment records shows that his bilateral knee pain inhibits his lifestyle and increases his depression. See VA treatment records.

Based on the foregoing, the Board finds that the Veteran's psychiatric disorder is aggravated by his service-connected bilateral knee disability. The October 2021 VA examiner attributed the Veteran's insomnia to his service-connected bilateral knee disability. The January 2022 VA examiner opined that the Veteran's insomnia was at least as likely as not aggravated beyond its natural progression by his service-connected bilateral knee patellofemoral syndrome. The Veteran's VA treatment records also indicate that his psychiatric disorder symptoms are exacerbated by his bilateral knee pain. Accordingly, service connection for a psychiatric disorder, to include insomnia and major depressive disorder with anxious distress, on secondary basis is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021).

As service connection is granted on a secondary basis, other theories of service connection are rendered moot and will not be addressed herein.

Entitlement to a higher initial rating for TMJ.

The Veteran is seeking a higher initial rating for his TMJ. See VA Form 10182. For the reasons that follow, the Board finds that a higher rating is not warranted.
for a psychiatric disorder, to include insomnia and major depressive disorder with anxious distress, on secondary basis is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021).

As service connection is granted on a secondary basis, other theories of service connection are rendered moot and will not be addressed herein.

Entitlement to a higher initial rating for TMJ.

The Veteran is seeking a higher initial rating for his TMJ. See VA Form 10182. For the reasons that follow, the Board finds that a higher rating is not warranted.

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries.?The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.?38?U.S.C. §?1155.?Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.?38?C.F.R. §?4.1.?????

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.?Otherwise, the lower rating will be assigned.?38?C.F.R. §?4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.?38?U.S.C. § 5107(b); 38?C.F.R. §§?3.102, 4.3.????

The Veteran's TMJ is rated under DC 9905. Under DC 9905, a 10 percent rating is warranted for lateral excursion range of motion from 0 to 4 millimeters (mm) or interincisal range limited to 30 to 34 mm of maximum unassisted vertical opening without dietary restriction to mechanically altered foods. A 20 percent rating is warranted for an interincisal range of 30 to 34 mm maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods or an interincisal range of 21 to 29 mm maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A 30 percent rating is assigned for 30 to 34 mm of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods or an interincisal range of 21 to 29 mm maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods. A 30 percent rating is also assigned for limited motion of 11 to 20 mm without dietary restrictions to mechanically altered foods. A 40 percent rating is assigned for an interincisal range of 21 to 29 mm with dietary restrictions to full liquid and pureed foods; interincisal range of 11 to 20 mm with dietary restrictions to all mechanically altered foods; and 0 to 10 mm of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A maximum 50 percent rating is assigned for an interincisal range of 0 to 10 mm with dietary restrictions to all mechanically altered foods. 38 C.F.R. § 4.150, DC 9905.

Notes (2) and (3) indicate that for VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm; and for VA compensation purposes, mechanically altered foods are defined as altered by blending, chopping, grinding, or mashing so that they are easy to chew and swallow. There are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods. To warrant elevation based on mechanically altered foods, the use of texture-modified diets must be recorded or verified by a physician.

The Veteran underwent a VA examination for his TMJ in April 2023. At that time, the Veteran reported experiencing pain and popping. He reported that the condition impacts his ability to eat and chew cold or hard and crunchy foods. The Veteran reported experiencing moderate flare-ups of the right TMJ two to three times a week, which last a couple of hours. The flare-ups are precipitated by grinding and clenching of teeth during stressful times, eating a steak, or yawning or opening wide. The flare-ups are alleviated by rest. The Veteran reported that he experiences difficulties with chewing, opening his mouth, and yawning during flare-ups. On examination, testing revealed that the Veteran's interincisal distance was greater than 34 mm and his right and
for his TMJ in April 2023. At that time, the Veteran reported experiencing pain and popping. He reported that the condition impacts his ability to eat and chew cold or hard and crunchy foods. The Veteran reported experiencing moderate flare-ups of the right TMJ two to three times a week, which last a couple of hours. The flare-ups are precipitated by grinding and clenching of teeth during stressful times, eating a steak, or yawning or opening wide. The flare-ups are alleviated by rest. The Veteran reported that he experiences difficulties with chewing, opening his mouth, and yawning during flare-ups. On examination, testing revealed that the Veteran's interincisal distance was greater than 34 mm and his right and left lateral excursion was greater than 4 mm. Pain was noted with mouth opening and right lateral excursion. Passive range of motion testing revealed the same measurements as initial testing, with pain on mouth opening and lateral excursion. There was evidence of pain on active and passive motion that causes functional loss, to include limits with chewing, yawning, and laughing. There was objective evidence of crepitus and localized tenderness, pain on palpation, or associated soft tissue on the right TMJ. The Veteran was able to perform repetitive-use testing with at least three repetitions. No additional loss of function or range of motion after three repetitions was noted. It was noted that pain significantly limits functional ability with repeated use over time and during flare-ups. No additional loss of range of motion with repeated use over time and during flare-ups was noted. There was no evidence of additional factors contributing to disability. No dietary restrictions due to the Veteran's condition were noted. The examiner concluded that the Veteran's TMJ impacts his ability to work because it causes jaw pain, which makes it difficult to talk at work. The examiner also noted that the Veteran lost up to one week of work time in the past 12 months due to his condition.

Based on the foregoing, the Board finds that the Veteran's TMJ symptoms are properly contemplated in his current 10 percent rating and an increased rating is not warranted. During the April 2023 VA examination, the Veteran reported experiencing pain, popping, difficulties with chewing certain foods, and flare-ups. However, on examination, the Veteran's interincisal distance was greater than 34 mm and his right and left lateral excursion was greater than 4 mm, even with repeated use over time or during flare-ups. Also, no dietary restrictions were noted. As such, the Veteran's symptoms more nearly approximate 10 percent rating criteria under DC 9905. Most importantly, the Veteran's TMJ did not approximate interincisal range of 30 to 34 mm maximum unassisted vertical opening with dietary restrictions to mechanically altered foods or 21 to 29 mm of maximum unassisted vertical opening without dietary restrictions, required for a 20 percent rating under DC 9905. Accordingly, an initial rating in excess of 10 percent for the Veteran's TMJ is not warranted.

The Board acknowledges that the Veteran is shown to experience pain on active and passive motion that causes functional loss, to include limits with chewing, yawning, and laughing. Even when contemplating the additional functional limitations, a higher evaluation is not warranted in this case as the Veteran's reports of pain and functional impairment are contemplated by the 10 percent rating criteria.

The Board considered statements of the Veteran and his attorney in support of a higher rating for his TMJ. Lay statements are competent evidence as to the Veteran's observable symptoms, to include pain. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, these statements are not competent evidence to establish, or approximate, rating criteria requiring medical knowledge and expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, the medical findings are more probative in determining the severity of the Veteran's disability.

In sum, the Board finds that an initial rating in excess of 10 percent for the Veteran's TMJ is not warranted. The evidence is 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. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, the appeal is denied.

REASONS FOR REMAND

Entitlement to service connection for left shoulder condition.

Entitlement to service connection for right shoulder condition.

Remand by the Board in the AMA is proper for correction of duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors). 38 C.F.R. §?20.802(a).
asively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, the appeal is denied.

REASONS FOR REMAND

Entitlement to service connection for left shoulder condition.

Entitlement to service connection for right shoulder condition.

In this regard, in the May 2023 rating decision the AOJ denied entitlement to service connection for a bilateral shoulder condition due to the lack of current diagnoses. However, the evidence of record includes an October 2022 private opinion from Dr. M.B.S. attributing the Veteran's bilateral shoulder sprain/strain and impingement syndrome to his military service. The Board also notes that if a condition manifests in symptoms that cause functional impairment in earning capacity, then it may be considered a "disability" for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Based on the foregoing, the Board finds that the low threshold of McLendon was met at the time the AOJ issued the May 2023 rating decision on appeal. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

In light of the foregoing, the Veteran should have been afforded a VA examination to determine the nature and etiology of his bilateral shoulder condition. Thus, a remand to correct a pre-decisional duty to assist error is necessary.

The matters are REMANDED for the following action:

Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed bilateral shoulder condition. The entire claims folder must be reviewed by the examiner, including a copy of this Remand. All appropriate clinical testing, to include radiographic studies, must be conducted.

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:

a) Is it at least as likely as not that the Veteran's left shoulder condition is related to any in-service disease, event, or injury? Explain why or why not.

b) Is it at least as likely as not that the Veteran's right shoulder condition is related to any in-service disease, event, or injury? Explain why or why not.

In rendering the requested opinion, the examiner shall consider the relevant medical evidence of record as well as the Veteran's lay statements in formulating any opinion. The opinion must fully consider and address the October 2022 private opinion indicating diagnoses of bilateral shoulder sprain/strain and impingement syndrome and the resulting functional impact.

C. CRAWFORD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Kuzniar, 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.

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