Citation Nr: 1013158 Decision Date: 04/07/10 Archive Date: 04/14/10 DOCKET NO. 09-00 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from July 1970 to September 1996. This appeal to the Board of Veterans' Appeals (Board) is from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The appellant requested a Travel Board hearing, but subsequently failed to appear for his requested hearing scheduled for March 2010. He did not offer an explanation or request to reschedule his hearing. Therefore, the Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2009). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Before addressing the merits of the claim for a left shoulder disorder, the Board finds that additional development of the evidence is required. A VA medical examination is needed to determine the etiology of the Veteran's left shoulder disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2009); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). His recent VA treatment records provide diagnoses of left shoulder tendonitis, bursitis and arthralgia. Further, April 2008 magnetic resonance imaging (MRI) was interpreted to reveal degenerative changes. Therefore, the Board does not dispute he has a current left shoulder disorder. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). There is no medical opinion of record that etiologically links this current left shoulder disability to the Veteran's military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). On the other hand, the Veteran has submitted sufficient evidence to meet the relatively low threshold of the third McClendon element. There appears to be some competent and credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. See McClendon, 20 Vet. App. at 83. In that regard, his lay statements of pain, stiffness, numbness, and insomnia associated with his left shoulder are symptoms within the realm of the personal experience of lay persons. He therefore provides competent evidence regarding the existence of those symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). His competency to make this claim must be distinguished from the weight and credibility of his lay testimony, which are factual determinations going to the ultimate probative value of this evidence. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). His statements of continuous symptoms since a waterskiing injury in the early 1980s have some basis in the record, and are therefore considered credible, at least for the limited purposes of establishing the need for a VA examination. At the outset, there is evidence of left shoulder injury during his military service. Specifically, service treatment records document that he injured his left shoulder in May 1980 while opening a drawer, and subsequently injured his left shoulder again in July 1981 during waterskiing. As a result of continued pain in his shoulder from that injury, he was diagnosed with chronic rotator cuff tendonitis in August 1981. Another service treatment record (STR) in August 1981 provided a differential diagnosis of muscle strain in the left shoulder versus ligamentous strain. Subsequent to these injuries, he continued to have intermittent complaints of left shoulder pain and other symptoms during much of the remainder of his service. His STRs show he complained of recurrence of left shoulder pain in October 1981. Subsequently, in February 1986, he was diagnosed and treated for a muscle strain, which included his deltoid and trapezius muscles. Shortly afterwards, in March 1986, he complained of numbness and tingling in the left upper extremity. October 1989 STRs show he complained of left arm numbness, recurrent over 10 years, with symptoms of several days duration. He was diagnosed with recurrent left arm weakness and numbness. At an October 1989 annual physical evaluation, the examiner objectively noted left arm numbness as a physical defect. He then complained in October 1990 of muscle stiffness of the left arm, again with numbness and weakness. He complained of a history of chronic shoulder pain in September 1991. The Board acknowledges that a May 1995 physical examination report, in the year prior to his separation, was silent regarding defects in his left shoulder. However, shortly following separation, at a May 1997 VA compensation examination, he again complained of left shoulder pain, but only when lying on his left side. Notably, in a more recent personal statement, he asserted insomnia due to constant left shoulder pain, apparently since separation. His VA treatment records from 2004-2008 reflect continued treatment for left shoulder pain and sleeping problems, further corroborating the assertions of a continuity of symptoms dating back to an in-service injury in service. Consequently, the exact nature and etiology of the Veteran's left shoulder disorder remains unclear. Overall, though, the Board finds that he has provided sufficient evidence in support of continuity of symptomatology of left shoulder pain to meet the relatively low threshold of the third McClendon element. Therefore, he needs to be examined for further medical comment concerning whether his left shoulder disorder is possibly the result of left shoulder injury sustained or disease contracted during the course of his military service. Based on the recent decision in McLendon, a remand for a VA examination and opinion is required to determine the precise nature and etiology of his current left shoulder disorder. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA compensation examination to determine the nature and etiology of his current left shoulder disorder. He is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences on this claim. The examination should include any diagnostic testing or evaluation deemed necessary. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical and other history. The examination report must state whether this review was accomplished. Based on a comprehensive review of the claims file, the examiner is asked to confirm whether the Veteran has a current left shoulder disorder. If he does, then the examiner must also provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current left shoulder disorder is related to the Veteran's military service. The term "at least as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. 2. Then readjudicate the claim in light of the additional evidence. If this claim is not granted to the Veteran's satisfaction, send him another SSOC and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of this remaining claim. The appellant has the right to submit additional evidence and argument on the matter or 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 Supp. 2009). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).