Citation Nr: 1305459 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 05-18 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a bilateral shoulder disorder, to include as due to in-service herbicide exposure and as secondary to the service-connected degenerative disc disease of the cervical spine, status post-anterior cervical diskectomy. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from July 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2004 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In January 2012, the Board denied this appeal. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In June 2012, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision as to that issue and to remand the claim for readjudication in accordance with the JMR. In February 2013, the Board received a copy of a claim for increased ratings for the Veteran's service-connected posttraumatic stress disorder (PTSD), cervical spine disability, and peripheral neuropathy of the upper and lower extremities, to include special monthly compensation based on loss of use of the upper and lower extremities, the need for aid and attendance, and housebound status. It appears that this claim was mailed directly to the RO. To the extent that it has not yet been addressed by the RO, the Board refers this claim to the RO for adjudication. The appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND Regrettably, a remand is necessary for further evidentiary development. The Veteran contends that he has a bilateral shoulder disorder that may be secondary to his service-connected cervical spine disability. This issue was previously remanded by the Board to afford the Veteran a VA examination to determine whether any diagnosed bilateral shoulder disorder was related to his military service, to include being secondary to a service connected disability. The Veteran was afforded a VA examination in May 2011. The examiner opined that the Veteran's shoulder disorder was not caused by or a result of his cervical spine disability. However, the examiner did not address whether the Veteran's service-connected cervical spine disability aggravates a bilateral shoulder disorder. As such, the Board finds that the examination is not adequate and a remand is necessary to obtain an addendum opinion from that examiner addressing whether the Veteran's bilateral shoulder disorder is aggravated by his cervical spine disability. Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, the Board observes that the May 2011 examiner indicated that it was less likely than not that the Veteran had nerve damage in his shoulders related to his cervical spine disability as the Veteran had significant degenerative disc disease in his shoulders. As X-rays from that examination revealed degenerative changes, it is unclear whether the examiner meant to say that the Veteran had degenerative joint disease as opposed to degenerative disc disease. On remand, the examiner should clarify as to whether they indeed meant to say that the Veteran has degenerative disc disease or whether the Veteran has degenerative joint disease of his shoulders. Furthermore, the most recent VA treatment records from the VA Medical Center (VAMC) in Nashville, Tennessee are dated in March 2010. On remand, records of any ongoing VA bilateral shoulder treatment that the Veteran may be receiving should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service bilateral shoulder treatment that the Veteran has received. The Board is particularly interested in records of such treatment that the Veteran may have received from the VAMC in Nashville, Tennessee since March 2010. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Obtain an addendum opinion regarding aggravation from the May 2011 examiner (or, if they are unavailable, a medical professional with appropriate expertise). The Veteran's claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the opinion. The examiner is requested to review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed bilateral shoulder disorder is aggravated (permanently worsened beyond normal progression) by the Veteran's service-connected cervical spine disability. [If the Veteran is found to have a bilateral shoulder disorder that is aggravated by his service-connected cervical spine disability, the examiner should quantify the approximate degree of aggravation.] The examiner should also clarify as to whether the Veteran has degenerative disc disease or degenerative joint disease of the bilateral shoulders. A complete rationale should be given for all opinions and conclusions expressed. If the examiner finds that he/she must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 3. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 4. Readjudicate the issue on appeal. If the benefit remains denied, issue to the Veteran and his representative a supplemental statement of the case and give them an opportunity to respond. The case should then be returned to the Board for further consideration. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that 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. 2012). _________________________________________________ ROBERT E. SULLIVAN 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).