Citation Nr: 1120840 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 07-23 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from December 1963 to September 1973. He also had service with the United States Army Reserves beginning in 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In addition to denying the Veteran's claim for service connection for bilateral shoulder injuries in this decision, the RO also denied the Veteran's claim of entitlement to service connection for bilateral hearing loss. The Veteran appealed both issues. Subsequently, in May 2008, the RO granted service connection for bilateral hearing loss and assigned a noncompensable rating effective January 31, 2006. As this represents a full grant of the benefit sought with respect to this service connection issue, this matter is no longer on appeal. With that said, the Veteran's representative contended that a compensable evaluation is warranted for the bilateral hearing loss in an October 2009 Informal Hearing Presentation. This matter is referred to the RO for appropriate action. In March 2008, the Veteran testified before a Hearing Officer at the RO. A transcript of that hearing has been incorporated into the claims file. This matter was previously before the Board in November 2009 at which time the case was remanded for additional development. 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 on his part. REMAND As the Board pointed out in its November 2009 remand, in addition to the documented rear-end vehicle collision that the Veteran was involved in in June 1987 with associated neck and right shoulder complaints, his service treatment records during his period of active duty service from December 1963 to September 1973 also document right shoulder complaints. More specifically, these records show that the Veteran was seen in April 1966 for right shoulder pain that began after pulling on a rope the previous day, and was treated in November 1967 for traumatic bursitis and contusion of the right shoulder. They also show that he complained of right shoulder pain in January 1968. In light of this evidence, the Board explained in the November 2009 remand that in addition to determining whether the Veteran was on "active service" at the time of the June 1987 motor vehicle collision, it was also necessary to determine whether his present right shoulder disability is in any way related to his inservice treatment of the right shoulder while on active duty in the late 1960s, despite the intervening injury in June 1987. The Veteran was subsequently examined by a VA examiner in May 2010. Unfortunately, this examiner does not render a medical nexus opinion between the Veteran's postservice right shoulder condition and his inservice right shoulder complaints in the l960s. In fact, the examiner doesn't even mention the Veteran's inservice right shoulder complaints. Rather, the examiner appears to be relying on the Veteran's statements in relating the Veteran's right shoulder disability to the motor vehicle collision (in June 1987). In this regard, when asked to provide the rationale for his opinion, the examiner replied "rationales based than injury so stated in the veteran statement". Although the examiner indicates that the Veteran's claims file and medical records were reviewed, he does not note or discuss the Veteran's service treatment records, to include his treatment in the 1960s for right shoulder problems. In January 2011, the RO requested an addendum from the May 2010 VA examiner. The RO informed the examiner that the Veteran was not on active duty, active duty for training or inactive duty for training at the time of the motor vehicle collision (in June 1987) and requested that he provide clarification regarding a possible relationship between the Veteran's right shoulder problems and service, with specific reference to the Veteran's service treatment records. The examiner responded by stating that since the Veteran was not on active duty at the time of the motor vehicle collision, he could only conclude that his injuries were not service connected. The Board finds that the May 2010 examiner's opinion is inadequate since it does not address the possibility of a nexus between the Veteran's documented inservice right shoulder complaints in the 1960s and postservice right shoulder problems, as the Board requested in its November 2009 remand. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (holding that medical opinion must be "based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one") and Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that a medical examination must "take into account the records of prior medical treatment."). Accordingly, in order to satisfy the directives of the Board's November 2009 remand and to properly decide this issue, further medical development is necessary by way of either an addendum VA medical opinion or new VA examination. 38 U.S.C.A. § 5103A(d); Stegall v. West, 11 Vet. App. 268 (1998) (The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In regard to the issue of entitlement to service connection for a left shoulder disability, the Veteran has asserted both in writing and at a March 2008 hearing before a hearing officer that this disability is secondary to his right shoulder disability. Thus, this issue is deferred pending resolution of the right shoulder disability claim. Based on the foregoing, the case is REMANDED for the following action: 1. Obtain an addendum opinion from the May 2010 VA examiner regarding the likelihood that the Veteran has a present right shoulder disability related to service. The claims file must be provided to and pertinent documents therein reviewed by the examiner. The examiner should specifically be asked to review and comment on the Veteran's service treatment records from December 1963 to September 1973, to include his documented right shoulder complaints in April 1966, November 1967 and January 1998, despite the June 1987 supervening right shoulder injury. He/she should then be asked to opine as to whether it is at least as likely as not (50% or greater probability) that the Veteran has a present right shoulder disability related to his recognized period of service, namely his right shoulder complaints in April 1966, November 1967 and January 1998. Any opinion provided must include an explanation of the basis for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. If that examiner is unavailable, then the Veteran should be afforded a new VA orthopedic examination so that an etiological opinion may be obtained as requested above that is based on a claims file review and examination of the Veteran. 2. Thereafter, the Veteran's claim of entitlement to service connection for a right shoulder disability should be readjudicated based on all the evidence of record. Then, the Veteran's claim of entitlement to service connection for a left shoulder disability should be readjudicated based on all the evidence of record. If such actions do not favorably resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, the claim should be returned to the Board for further appellate review, if in order. The appellant and his representative have 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. 2010). _________________________________________________ BARBARA B. COPELAND 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) (2010).