Citation Nr: 1219294 Decision Date: 06/01/12 Archive Date: 06/13/12 DOCKET NO. 10-02 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for curvature of the spine as secondary to service-connected recurrent dislocation of the right acromioclavicular joint. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from November 1990 to March 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO), which denied service connection for residual of right shoulder acromioclavicular joint separation with secondary curvature of the spine between the shoulder blades. A November 2011 rating decision granted service connection for recurrent dislocation of the right shoulder acromioclavicular joint and assigned a 20 percent rating effective July 25, 2008. The issue on appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Although a VA examiner concluded on evaluation in July 2011 that the Veteran's spine disability was "less likely as not" caused by or the result of military service, or secondary to in service right shoulder AC joint separation, this opinion did not specifically comment on whether the Veteran's spine disability was aggravated beyond normal progression by the Veteran's service-connected recurrent dislocation of the right shoulder acromioclavicular joint. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b) (2011). Consequently, additional development is needed prior to final adjudication of the issue of service connection for curvature of the spine, secondary to service-connected recurrent dislocation of right shoulder acromioclavicular joint. Therefore, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the RO must arrange for the VA examiner that provided the opinion in July 2011 that the Veteran's curvature of the spine was not caused by his service-connected recurrent dislocation of the right shoulder acromioclavicular joint, to provide an addendum to the previous opinion. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. After a review of the evidence of record, the examiner must provide an opinion as to whether the Veteran's curvature of the spine is aggravated by his service-connected recurrent dislocation of the right shoulder acromioclavicular joint. A complete rationale for the opinion must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. If the examiner who provided the opinion in July 2011 is unavailable, the RO must obtain the requested opinion from another VA examiner. If it is determined that a current examination is needed in order to provide the requested opinion, an examination must be conducted. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the reviewer, and the reviewer must specify in the examination report that the claims file and Virtual VA records have been reviewed. The reviewer must specify the dates encompassed by the Virtual VA records that were reviewed. After reviewing the evidence of record, the examiner must provide an opinion as to whether the Veteran's curvature of the spine was aggravated by his service-connected recurrent dislocation of the right shoulder acromioclavicular joint. The reviewer's opinion must include a discussion of the evidence of record and a complete explanation of the reasoning for the opinion. If the reviewer cannot provide the requested opinion without resorting to speculation, it must be so stated, and the reviewer must provide the reasons why an opinion would require speculation. The reviewer must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the reviewer must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular reviewer. The report prepared must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled 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 the aforementioned 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. 5. Thereafter, the RO must readjudicate the issue of entitlement to service connection for curvature of the spine as secondary to service-connected recurrent dislocation of the right shoulder acromioclavicular joint based on all of the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and must be afforded an appropriate opportunity to respond. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. 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 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).