Citation Nr: 1303845 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 08-15 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for right shoulder impingement syndrome. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from February 1978 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal following a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2012, the Board remanded the Veteran's claim on appeal to the RO for additional development. Following the requested development, the RO readjudicated the Veteran's claim and continued its previous denial. It issued the Veteran a supplemental statement of the case (SSOC) in May 2012. The appeal has since been returned to the Board for review. 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 A review of the Veteran's claims file reflects that he filed his claim for service connection for a right shoulder injury in November 2006. At that time, the Veteran reported that he had been treated for right shoulder problems at the VA Medical Center (VAMC) in Poplar Bluff, Missouri (a.k.a. John J. Pershing VAMC). Subsequently, in a statement received in February 2007, the Veteran again reported having received treatment on his right shoulder at the Poplar Bluff VAMC from May 2001 to October 2005. In a March 2012 Written Brief Presentation, the Veteran's representative contended that records from the Poplar Bluff VAMC needed to be obtained prior to any consideration of the Veteran's claim on appeal. The Board's review of the above noted July 2007 rating decision and a subsequent January 2008 statement of case does not reflect that the RO cited to or discussed any treatment records associated with the Poplar Bluff VAMC. Otherwise, the Board's review of VA records currently associated with the claims file (to include Virtual VA) does not reflect any records from the Poplar Bluff VAMC. There is also a lack of any record documenting that the RO has attempted to obtain records from the Poplar Bluff VAMC. In the case of compensation claims, the duty to assist includes obtaining the Veteran's VA records, as well as relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C.A. § 5103A(c)(1), (3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). Thus, pertinent medical records associated with the Veteran's reported treatment at the Poplar Bluff VAMC, from May 2001 to October 2005, should be obtained and associated with the claims file. Any response from the Poplar Bluff VAMC should also include a comment concerning a search of any retired records or that no retired records exist. Otherwise, as part of the Board's remand in April 2012, a VA examiner examined the Veteran, reviewed the claims file, and provided a medical opinion concerning the Veteran's claim. The examiner commented that the Veteran's in-service right shoulder issue had resolved and that there had been no residuals. The examiner's finding was based in part on the lack of any documented treatment for a right shoulder disorder until many years after service. The examiner also opined that the right shoulder impingement syndrome was not related to service but instead related to "professional bullfighting injuries" reported in post-service treatment records in 2000. The Board notes that if it is concluded that lay evidence presented by a Veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the Veteran's ability to prove his claim for service connection based on that lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Also, with regard to bull riding, in a June 2012 statement the Veteran reported that he rode bulls while a member of the Camp Pendleton Marine Corps rodeo team, but that he had not ridden bulls post service. The Veteran's service treatment records reflect a notation regarding a right ankle injury after being stepped on by a bull during a rodeo. Also, the Veteran has contended that he did not suffer any right shoulder injury riding bulls in service, and that his right shoulder problems first began secondary to Marine Corps training. He has also reported having experienced problems with his right shoulder since shortly after service. Because of the need to remand the Veteran's claim on appeal to obtain any additional VA records from the Poplar Bluff VAMC, the claims file should also be returned to the VA examiner who provided the May 2012 medical opinion for an addendum opinion. The examiner should review her examination report and its findings, as well as the evidence of record, to include any available treatment records received from the Poplar Bluff VAMC. The examiner should again offer an opinion as to whether any current right shoulder disability is related to the Veteran's period of military service. In so doing, the examiner should clearly set forth the medical reasons for accepting or rejecting the Veteran's lay observations, which he is competent to report, regarding continuous right shoulder symptoms since service. Buchanan, supra. If the May 2012 VA examiner is not available to provide an addendum opinion, make arrangements for the file to be reviewed by another examiner who should be requested to supply the opinion. (If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an examination.) Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any private or VA treatment he may have received for his right shoulder disability. After obtaining the appropriate release of information forms (where necessary), procure records of any treatment the Veteran has received. The Veteran's most recent VA treatment records are dated no later than May 2012. Records since that time should be obtained. If any records identified by the Veteran are not available, the Veteran should be so informed in accordance with the provisions of 38 C.F.R. § 3.159(c)(2), (e)(1). 2. Obtain any available VA treatment records from the Poplar Bluff (Missouri) VAMC (a.k.a. John J. Pershing VAMC) dated from May 2001 to October 2005. Any search should include a search of Poplar Bluff VAMC retired/archived records, if appropriate. If records from the Poplar Bluff VAMC are unavailable, or the search for them otherwise yields negative results, this fact must be documented in the claims file, to include documentation of a search of retired/archived records, and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2), (e)(1). 3. After completion of the above (and allowing a reasonable amount of time to obtain any identified records), the claims file should be referred back to the VA examiner who provided the May 2012 VA opinion concerning the Veteran's claim for service connection for a right shoulder impingement syndrome. The examiner should offer an addendum medical opinion based on a thorough review of the evidence of record. A copy of this REMAND must be made available to the examiner for review in connection with the requested opinion. In particular, following her review of the claims file and any additional evidence received since the May 2012 VA examination (to include VA treatment records), the examiner should again opine as to whether it is at least as likely as not (a 50% or higher degree of probability) that any current right shoulder disability had its clinical onset during the Veteran's period of service, or whether any such disability otherwise is related to such period of service. (See June 2012 statement from the Veteran, in which he reported that he was involved with bull riding while a member of the U.S. Marine Corps Camp Pendleton rodeo team, but did not otherwise ride bulls following service. Also, the Veteran has contended that he did not injure his right shoulder while riding bulls in service.) A complete explanation should be given for any opinion and/or conclusion expressed with reference to relevant evidence. As part of the examiner's explanation, she should explain the reasons for accepting or rejecting the Veteran's history of right shoulder problems since service. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). If the VA examiner is not available to provide an addendum opinion, make arrangements for the file to be reviewed by another examiner who should be asked to supply the opinion. (If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an examination and the necessary opinion requested.) After the above has been completed, undertake any additional evidentiary development deemed appropriate. 4. Thereafter, re-adjudicate the issue on appeal, as is listed on the title page of this Remand. If the benefit sought is denied, the Veteran and his representative must be provided an SSOC and given an opportunity to respond before the case is returned to the Board for appellate review. The Veteran 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). (CONTINUED ON NEXT PAGE) 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. 2012). _________________________________________________ J. A. MARKEY 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) (2012).