Citation Nr: 1204792 Decision Date: 02/08/12 Archive Date: 02/16/12 DOCKET NO. 08-08 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a left shoulder disability, secondary to service-connected right shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1977 to April 1987. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claim of entitlement to service connection for a left shoulder disability. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, additional remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to afford the Veteran every possible consideration. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2011). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran contends that his current left shoulder disability is secondary to his service-connected right shoulder disability. He specifically asserts that his left shoulder disability developed as a result of having to overcompensate for his service-connected right shoulder disability. There are two opinions of record addressing the relationship between the service-connected right shoulder disability and current left shoulder disability on appeal. In an August 2006 letter, L.M.G., M.D. noted that the Veteran's left shoulder disability (left irreparable massive rotator cuff tear) worsened after his right shoulder became painful and for which he had surgery. She indicated that because of the right shoulder disability, the Veteran had to overuse his left shoulder which resulted in exacerbation and acceleration of his symptoms and eventually leading to his left shoulder surgery. VA afforded the Veteran an examination in November 2007. In noting a diagnosis of degenerative joint disease of the left shoulder status-post rotator cuff tear including supraspinatus tendon with failed repair, the examiner indicated that she was unable to relate the Veteran's left shoulder disability to his right shoulder disability. She cited to the Veteran's full range of motion of the left shoulder, the fact that as recently as 2005 the Veteran had full pain-free range of motion of the left shoulder, and the left rotator cuff tear occurred while employed with his factory job (the Veteran has since submitted a statement that he was not at the factory when he tore his left rotator cuff but that the injury occurred in January 2006 at home while lifting boxes). The examiner also discounted Dr. G's August 2006 letter, noting that Dr. G did not review the claims folder. The Board finds that the November 2007 VA examination report is inadequate. The examiner's only basis for her opinion appears to be that the Veteran demonstrated full range of motion of the left shoulder. However, in her own findings, she noted that the Veteran had a left rotator cuff and thus a disability is demonstrated despite his full range of motion. On remand, the Veteran must be provided a new examination to determine whether the Veteran's current left shoulder disability is secondary to his service-connected right shoulder disability. See Allen v. Brown, 7 Vet. App. 439, 446 (1995) (holding that if aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected for that degree of aggravation; see also 38 C.F.R. § 3.310 (2011). Establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. §§ 3.303, 3.310 (as in effect prior to October 10, 2006). [The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Because the Veteran submitted his claim in July 2006, prior to October 10, 2006 (the effective date of the amended provisions), the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. See 38 C.F.R. § 3.310 (2011); Allen supra ; see also generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003)]. See also Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an examination to ascertain the nature and etiology of his current left shoulder disability. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. The examiner should determine the diagnosis of any current left shoulder disability. For each disability identified, the examiner should provide an opinion as to (i) whether there is a 50 percent or better probability that the left shoulder disability is related to the Veteran's military service, or (ii) whether there is a 50 percent or better probability that the left shoulder disability was either (1) caused by or (2) is aggravated by the Veteran's service-connected right shoulder disability. If the examiner determines that the Veteran's left shoulder disability is aggravated (i.e., permanently worsened) by the right shoulder disability, the examiner should identify the percentage of disability which is attributable to the aggravation. See 38 C.F.R. § 3.310 (as in effect prior to October 10, 2006); Allen v. Brown, 7 Vet. App. 439 (1995). In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed left shoulder as shown by the evidence of record. The examiner should provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Notify the Veteran that it is his responsibility to report for the scheduled VA examination, and to cooperate in the development of the claim. 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 (2011). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 3. Thereafter, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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. 2011). _________________________________________________ DAVID L. WIGHT 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) (2011).