Citation Nr: 1108468 Decision Date: 03/03/11 Archive Date: 03/17/11 DOCKET NO. 08-31 157 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a disability of the left shoulder. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from June 1986 to September 1990, from January 1991 to July 1991, and from November 2004 to February 2006. He also had periods of reserve service. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2007 rating decision in which the RO, inter alia, denied service connection for a left shoulder condition. In February 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2008. In September 2010, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action on the claim on appeal is warranted. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. Under the circumstances of this case, the Board finds that medical examination and an opinion by an appropriate physician would be helpful in resolving the claim for service connection. In this case, the Veteran is contending that he has a disability of the left shoulder, most recently diagnosed as left shoulder impingement that is related to his period of active service from November 2004 to February 2006. It appears that some of the Veteran's service records from this period of service are not associated with the claims file, even though the RO made several attempts to locate them. The RO made a formal finding in August 2007 that these records were not available and any further attempts to locate them would be futile. A January 2001 reserve examination report shows that the Veteran's upper extremities were normal. Subsequently, during his pre-deployment physical, dated in March 2003, the Veteran reported only a dental disorder as having been treated since his last physical. He indicated that he had no barrier to carrying heavy items as part of his deployment. Thereafter, VA outpatient records beginning in April 2006 show that the Veteran reported that he returned from Iraq in January 2006 and began to have pain in his left shoulder at that time. Since then, the Veteran has consistently report that his left shoulder pain began in January or February 2006. He subsequently underwent left shoulder surgery and physical therapy in 2007 and has been followed for his left shoulder since that time. While it appears that some of the Veteran's service treatment records are not associated with the claims file, the Veteran testified in September 2010 that he did not seek treatment during service for his left shoulder. Therefore, it appears that, even if there are records missing, they would not contain any pertinent evidence. Nevertheless, the Board finds that the Veteran's testimony and reports of symptomatology have remained consistent throughout his treatment and the appeal period. As such, the Board finds them credible. The Veteran's credible statements, taken together with his currently diagnosed left shoulder disability and the small period of time between separation and treatment, suggest that Veteran may have a currently diagnosed left shoulder disability that is related to service. However, the record includes no actual opinion addressing the medical relationship, if any, between the currently diagnosed left shoulder disability and service. Under these circumstances, the Board finds that a medical opinion-based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale-would be helpful in resolving the claim for service connection. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 83. Accordingly, the RO should arrange for the Veteran to undergo VA examination at a VA medical facility. The Veteran is hereby advised that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection for a left shoulder disability (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. The record reflects that there are outstanding VA medical records which may be pertinent to the claims remaining on appeal. In this regard, the Veteran reported in a November 2010 written statement that he will be undergoing left shoulder surgery on February 21, 2011. It appears, from a July 2010 VA outpatient treatment record, that this surgery will be performed at the Lebanon, Pennsylvania VA Medical Center (MC). While the claims file currently includes treatment records from the Lebanon VAMC dated through July 2010, the Veteran's testimony indicates that more recent records of VA surgery and treatment for the left shoulder are available. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain any records of treatment for the left shoulder, since July 2010, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Prior to scheduling the Veteran's examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2010) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2010). The actions identified herein are consistent with the duties imposed by the Veterans Claim Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the Lebanon, Pennsylvania VAMC all outstanding pertinent records of evaluation and/or treatment of the Veteran's left shoulder (dated from July 2010 to the present). The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, or the time period for response has expired, the RO should arrange for the Veteran to undergo VA orthopedic examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify whether the Veteran has a currently diagnosed left shoulder disability. Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is medically related to service. In rendering the requested opinion, the physician should specifically consider the in- and post-service treatment records, as well as the Veteran's contentions. The Board notes that it finds the Veteran's description of the history of his left shoulder symptomatology to be credible. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After accomplishing all requested action, as well as any additional action deemed warranted by the VCAA, the RO should readjudicate the claim on appeal in light of all pertinent evidence and legal authority. 8. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2010).