Citation Nr: 1530492 Decision Date: 07/16/15 Archive Date: 07/24/15 DOCKET NO. 10-27 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a cervical/lumbar spine disability, to include as secondary to a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from January 1956 to June 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2008 and June 2008 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board denied the service connection claims on appeal in a November 2013 decision. At that time, the Board had also recharacterized the spine issue to reflect the Veteran's contentions, the medical evidence, and the procedural history. The Veteran appealed the Board's November 2013 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2015 Memorandum Decision, the Court vacated the November 2013 Board decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In its March 2015 Memorandum Decision, the Court found that the Board had relied on inadequate medical opinions in denying the claims for service connection for left shoulder, secondary cervical spine, and secondary lumbar spine disabilities. Specifically, the Court found the April 2013 VA medical opinion regarding the left shoulder and cervical spine inadequate because it failed to consider the severity of the Veteran's "in-service left shoulder condition," which reflects that he "suffered from joint pain and limitation of motion for months, was diagnosed with chronic bursitis of the left shoulder, received multiple injections, and was hospitalized for about two months during his last year of service." The Court also detailed that the April 2013 examiner "failed to adequately explain her rationale that 'aging/occupational/activity factors' are more likely the cause of the appellant's current left shoulder and spinal disabilities," noting that the examination report lacked "any discussion of the specific occupational or activity factors to which the examiner attributed the Veteran's conditions" and lacked discussion of "how she weighed the aging factor." Regarding the lumbar spine, the Court also found that the Board erred in relying on the June 2013 medical opinion, which it found inadequate because the examiner failed to adequately address the Veteran's medical history or support the conclusion. The Court noted that the examiner "did not address the treatment records from 2005 to 2007 showing symptoms in the [Veteran's] lumbar spine" and provided "no rationale for how the unnamed 'general population study' supported her conclusion in light of the [Veteran's] individual medical history." Finally, the Court found the opinion inadequate because the examiner "failed to opine as to whether the [Veteran's] left shoulder disability may have aggravated his lumbar disability." The AOJ should arrange for an additional VA orthopedic examination to obtain the necessary medical opinions. Prior to the examination, the AOJ should obtain ongoing treatment records pertinent to the claims. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should attempt to obtain and associate with the claims file records of ongoing evaluation and treatment pertinent to the left shoulder, cervical spine, and lumbar spine from the Mayo Clinic in Jacksonville, Florida dated since October 2008. 2. Thereafter, the AOJ should schedule the Veteran for a VA orthopedic examination to determine whether he has a current left shoulder disability related to military service, and a current cervical and/or lumbar spine disability caused or aggravated by a left shoulder disability. The Veteran's claims file, to include a complete copy of this Remand, must be provided to the examiner designated to examine the Veteran, and the report of examination should note thorough review of the claims file. All necessary special studies or tests should be accomplished and the reports of such included in the examination report. The examiner should offer an opinion as to the following: a) Please identify all left shoulder, cervical spine, and lumbar spine disabilities found. b) Did any left shoulder, cervical spine, or lumbar spine disability at least as likely as not (a 50 percent or greater degree of probability) have its onset during active service? c) Did any arthritis of the left shoulder, cervical spine, or lumbar spine at least as likely as not (a 50 percent or greater degree of probability) manifest within a year of separation from service? d) If service connection is established for a left shoulder disability, indicate whether it is at least as likely as not (a 50 percent or greater probability) that a cervical or lumbar spine disability was caused or aggravated by such disability. If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. A complete rationale for each opinion expressed must be provided. For any medical treatise evidence considered in reaching a medical conclusion, the examiner must cite the treatise or medical study and explain how it relates to the Veteran's disability(ies). In rendering the requested opinions, the examiner should consider in-service complaints and findings of joint pain and limitation of motion, diagnosis of chronic bursitis of the left shoulder, multiple left shoulder injections, and hospitalization for about two months during the Veteran's last year of service. Also, if occupational, activity, or aging factors have any bearing on the current severity of a left shoulder or cervical or lumbar spine disability, the examination report must include a discussion of the specific occupational or activity factors attributed the particular disability(ies), and describe how the aging factor was weighed against other factors. Finally, the examiner should address treatment records from 2005 to 2007 showing lumbar spine symptoms. 3. After completion of the above, the AOJ should adjudicate the issues of entitlement to service connection for a left shoulder disability and secondary service connection for cervical and lumbar spine disabilities. If any benefit sought on appeal remains denied, the AOJ must furnish a supplemental statement of the case (SSOC) before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran until notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in denial of the claim. 38 C.F.R. § 3.655 (2014). The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).