Citation Nr: 1036614 Decision Date: 09/28/10 Archive Date: 10/05/10 DOCKET NO. 06-35 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a right shoulder condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1984 to May 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran's claim for service connection for a right shoulder condition. The Board notes that the Veteran also appealed the evaluation assigned to his service connected left wrist condition. A statement of the case on this issue was provided in February 2009. However, the Veteran did not submit a substantive appeal with respect to that issue and the Board does not have jurisdiction to address it. 38 C.F.R. § 20.200, 20.202, 20.302. 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 After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim for service connection for a right shoulder condition. The Veteran contends that he is entitled to service connection for a right shoulder condition on the basis that he sustained an injury to the right shoulder during active service and he has a current right shoulder condition related to such. The service treatment records indicate that the Veteran was treated many times during active service for problems with the right shoulder. He reported that he had sustained an injury to the right shoulder when he collided with a wall or fence while playing baseball. He was variously diagnosed with recurrent shoulder dislocation, subacrimonial impingement, unresolved sprain of the right shoulder, acromioclavicular (AC) joint strain or separation, chronic right shoulder pain, and possible rotator cuff tear. Further, current VA and private treatment records indicate that the Veteran has a current right shoulder condition which may be related to the right shoulder condition that was documented during active service. VA treatment records show that the Veteran has recently had subjective complaints of pain and objective range of motion limitations in the right shoulder. A January 2006 private treatment record reveals that the Veteran was assessed with right shoulder pain which the Veteran's physician related to an injury during active service. VA treatment records show that in March 2006, the Veteran reported having experienced chronic right shoulder pain since discharge from active service. X-rays of the right shoulder taken that month showed mild AC joint spurring. Additional right shoulder X-rays taken in November 2006 indicated an abnormality. During an orthopedic consultation at that time, the Veteran complained of a long-standing history of pain in his right shoulder. He stated that he had been scheduled for surgery for a rotator cuff repair back in the late 1980s, but it was canceled and he was treated with just therapy and a cortisone injection. The Veteran said that he had injured his right shoulder when he was in the military when he hit it on a post. After a physical examination, the impression was right shoulder impingement with history of rotator cuff injury. In January 2007, after the results of magnetic resonance imaging (MRI) of the right shoulder were reviewed and a physical examination was performed, the impression was of right shoulder impingement with partial thickness supraspinatus tear with degenerative joint disease of the AC joint. Treatment of the right shoulder has included joint injections, and physical therapy was recommended. The Board observes that the Veteran has not been provided with a VA examination to evaluate his right shoulder condition during the course of this appeal. As the Veteran was treated for a right shoulder condition during active service and there is evidence of a current right shoulder condition which could be related to active service, a VA joints examination should be provided to the Veteran to determine the nature of the Veteran's current right shoulder condition and its possible relationship to active service, including the conditions that were treated therein. See 38 C.F.R. § 3.159(c)(4) (2009); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Since the Board has determined that an examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) (2009) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 (2009) address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination scheduled in conjunction with an original claim, the claim will be decided based on the evidence of record. Ongoing VA medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain relevant VA outpatient treatment records dating since April 2007 from the Erie, Pennsylvania VA Medical Center and associated outpatient clinics. 2. Schedule the Veteran for a VA joints examination to determine the nature of his current right shoulder condition and to obtain an opinion as to the likelihood that it is related to active service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All indicated studies and tests should be accomplished, and all clinical findings should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should provide a diagnosis for all right shoulder conditions identified. Additionally, the examiner should opine as to whether it is more likely, less likely, or at least as likely as not (50 percent probability) that any diagnosed current right shoulder condition is related to the Veteran's active military service, to include the right shoulder injury that occurred therein. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 3. Following the completion of the above, the RO/AMC should review the evidence and determine whether the Veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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). _________________________________________________ K. A. BANFIELD 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).