Citation Nr: 1222012 Decision Date: 06/24/12 Archive Date: 07/02/12 DOCKET NO. 04-41 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a right rotator cuff tear and tendonitis, to include as secondary to service-connected residuals of a shell fragment wound to the right shoulder involving Muscle Group I. REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney WITNESSES AT HEARING ON APPEAL Appellant and son ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1942 and October 1945. The appellant was found to be incompetent by a December 2011 rating decision; however, there is no indication in the available record that a fiduciary has been appointed at this time. There is no indication of any defect in the notices provided in this case. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") on April 5, 2010, which vacated an April 2009 Board decision and remanded the case for additional development. The Court previously vacated an October 2006 Board decision as to this issue on October 25, 2007. The issue initially arose from a December 2003 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2005, the Veteran testified at a personal hearing before a decision review officer at the RO. A copy of the transcript of that hearing is of record. The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2011). The case was remanded for additional development in September 2010. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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. REMAND The Board notes that the issue on appeal was remanded for additional development in September 2010 including for a medical opinion as to whether any current right shoulder disability, including any identified rotator cuff tear, bursitis, or tendonitis, is proximately due to, the result of, or permanently aggravated by service-connected residuals of a shell fragment wound to the right shoulder involving Muscle Group I, or is otherwise related to service. Although VA opinions were obtained in March and May 2011, the examiner did not specifically the address the question presented. The examiner's statements that the right shoulder disorder was "less likely as not related to the shrapnel" or the wound from it is insufficient for an adequate determination of the issue on appeal. The Court has held that a remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the case must again be remanded for the requested opinion. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file must be returned to the March and May 2011 VA examiner, if available, for clarification of the provided etiology opinion. Specifically, the examiner must express an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that any current right shoulder disability, including any identified rotator cuff tear, bursitis, or tendonitis, was (a) incurred as a result of service or is (b) proximately due to, the result of, or alternatively (c) permanently aggravated by his service-connected residuals of a shell fragment wound to the right shoulder involving Muscle Group I. If the VA examiner is unavailable, the case should be forwarded to another suitable examiner who, following review of the record, should be directed to provide the requested opinion. See also September 2010 Board remand. Opinions should be provided based on the results of prior examination, a review of the medical and lay evidence of record, and sound medical principles. All findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 2. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with appropriate consideration of all the evidence of record. If any benefit sought remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has 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. 2011). ______________________________________________ S. L. Kennedy 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).