Citation Nr: 1122913 Decision Date: 06/15/11 Archive Date: 06/28/11 DOCKET NO. 07-34 842A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a low back disorder, to include as secondary to cervical spine degenerative joint disease. 2. Entitlement to service connection for a left shoulder disorder, to include as secondary to a cervical spine degenerative joint disease. 3. Entitlement to an evaluation in excess of 10 percent for a skin rash. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Pflugner INTRODUCTION The Veteran served on active duty from October 1967 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Wichita, Kansas (RO). In March 2007, the Veteran submitted a claim of entitlement to a total rating based on individual unemployability (TDIU). After this claim was denied in April 2007, the Veteran perfected an appeal. Before this claim was certified to the Board for appellate review, the RO granted entitlement to TDIU by way of an April 2010 rating decision. Consequently, the issue of entitlement to TDIU is moot and, thus, the Board will not address it herein. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND A. Low Back Disorder In July 2009, the Veteran underwent a VA examination of his low back. As a result of this examination, the diagnosis was multilevel degenerative disc disease, progressive, with bilateral L4 radiculopathy. The examiner did not render an opinion as to whether the Veteran's degenerative disc disease was related to his active duty service, to include any incident therein. Further, the examiner did not provide an opinion as to whether the Veteran's low back degenerative disc disease was related to or aggravated by his service-connected cervical spine degenerative joint disease. As such, the Board finds that the July 2009 VA examination is inadequate for purposes of determining service connection. "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, in order to satisfy VA's duty to assist, the Board finds that a remand is warranted in order to afford the Veteran another VA examination. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). B. Left Shoulder Disorder Generally, a VA examination is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the inservice event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2009); see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Veteran's service treatment record demonstrated complaints of and treatment for upper body pain. The post-service evidence of record demonstrated a June 2007 diagnosis of a left shoulder rotator cuff tear; post-traumatic arthritic changes at the acromioclavicular joint; labral and sand tearing; and impingement pathology. Moreover, the Veteran reported experiencing left shoulder "trouble" since 1969. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006)(holding that a veteran's statement is competent evidence as to events that are capable of lay observation); Layno v. Brown, 6 Vet. App. 465 (1994) (holding that a veteran's statements are competent evidence of what comes to him/her through his/her senses). As such, there is an indication that the Veteran's current left should disorder may be associated with an inservice event or injury; however, there was no competent opinion of record addressing the etiological relationship, if any, between the Veteran's left shoulder disorder(s) and his active duty service, to include any incident therein. Consequently, the Board finds that the evidence of record insufficient to determine entitlement to service connection for a left shoulder disorder and, thus, a remand is warranted in order to afford the Veteran a VA examination. See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (holding that a remand may be required if the evidence of record contains insufficient information for evaluation purposes). C. Skin Rash Pursuant to the Veteran's claim of entitlement to an evaluation in excess of 10 percent for his service-connected skin rash, he underwent a VA examination in February 2007. The Veteran's claim was denied in April 2007. During the pendency of the appeal, the Veteran did not submit or identify treatment reports that demonstrated treatment for his skin rash dated subsequent to the February 2007 VA examination. VA's duty to assist includes providing a thorough and contemporaneous medical examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The February 2007 VA examination is too remote, and the evidence of record is otherwise inadequate to assess the present severity of the Veteran's service-connected skin rash. As such, the Board finds that a remand for a VA examination is warranted in order to obtain more recent findings. Accordingly, the case is remanded for the following action: 1. The Veteran must be afforded another VA examination to determine the nature and etiology of any current low back disorder. The claims file must be made available to and reviewed by the examiner. All necessary and appropriate tests must be performed and their results documented, to include range of motion testing. The examiner must fully describe all manifestations of any low back disorder found, to include any orthopedic and neurological findings. After examining the Veteran, and reviewing the service treatment records and post-service treatment records, the examiner must opine as to whether any current low back disorder is etiologically related to the Veteran's active duty service, to include any incident therein. The examiner must also address whether any current low back disorder was due to or aggravated by the Veteran's service-connected cervical spine disability. In rendering any etiological opinion, the examiner must address the Veteran's assertions that he experienced low back symptoms since his active duty service. A complete rationale for all opinions must be provided. If the examiner cannot render an opinion without resorting to speculation, the examiner must so state, and thoroughly explain why speculation is required. The report prepared must be typed. 2. The Veteran must be afforded a VA examination to determine the nature and etiology of any current left shoulder disorder. The claims file must be made available to and reviewed by the examiner. All necessary and appropriate tests must be performed and their results documented, to include range of motion testing. The examiner must fully describe all manifestations of any left shoulder disorder found, to include any orthopedic and neurological findings. After examining the Veteran, and reviewing the service treatment records and post-service treatment records, the examiner must opine as to whether any current left shoulder disorder is etiologically related to the Veteran's active duty service, to include any incident therein. The examiner must also address whether any current left shoulder disorder was due to or aggravated by the Veteran's service-connected cervical spine disability. In rendering any etiological opinion, the examiner must address the Veteran's assertions that he experienced left shoulder symptoms since his active duty service. A complete rationale for all opinions must be provided. If the examiner cannot render an opinion without resorting to speculation, the examiner must so state, and thoroughly explain why speculation is required. The report prepared must be typed. 3. The Veteran must be afforded a VA examination to determine the current severity of his service-connected skin rash. The entire claims file, to include a complete copy of this remand, should be made available to, and reviewed by, the examiner. All necessary tests and studies should be conducted, and all clinical findings should be reported in detail. Color photographs should be taken. The examiner must indicate the percentage of the Veteran's body that is affected by his service-connected skin rash, and a specific finding should be made as to the percentage of exposed areas affected. The examiner must determine if the Veteran requires systemic therapy for the skin rash, such as corticosteroids or other immunosuppressive drugs; and, if so, the total duration in weeks of such therapy during a 12-month period. Further, the examiner must opine as to whether the skin rash is disfiguring to the Veteran's head, face, or neck. In this regard, the examiner must identify visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips). Likewise, the examiner must identify any of the following characteristics of disfigurement: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (0.6 cm.) wide at widest part. Surface contour of scar elevated or depressed on palpation. Scar adherent to underlying tissue. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). A complete rationale for all opinions must be provided. If the examiner cannot render an opinion without resorting to speculation, the examiner must so state, and thoroughly explain why speculation is required. The report prepared must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for the examinations, documentation must be obtained that shows that notice scheduling the examinations was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).