Citation Nr: 1305848 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 07-20 784A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left shoulder disability, to include degenerative joint disease. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. No hearing was requested. In November 2010, the Board remanded this issue for further development and consideration. The remand directives were not substantially completed, and the case must again be remanded. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's Virtual VA file (a highly secured paperless storage system) currently does not include any pertinent records that are not also in the paper claims file. Any further development or adjudication should take into account this paperless file. 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 The Veteran contends that he has a left shoulder disability related to his active service. Service treatment records are silent as to any complaints of left shoulder pain or treatment of a left shoulder injury, including the November 1969 separation examination. However, less than a year after discharge from service, in July 1970, the Veteran was treated for left shoulder pain with a history of transthoracic hiatal hernia surgery in 1969 (which occurred during service). The Veteran asserts that his current left shoulder disability is related to his surgery for hiatal hernia during service and the placement of his left arm during recovery for the surgery. In a July 1991 VA examination, the Veteran reported problems with the shoulder and neck, as well as hiatal hernia. He reported having a pinched nerve in the left shoulder, that the pain had increased over the years, and that he was now receiving treatment for it. He did not specify when the reported pinched nerve began, but he identified treatment by Dr. S starting in February 1991. The Veteran was noted to have constant indigestion, muscle spasms in the left side and back, and nerve damage around the scar on his back and side. No shoulder condition was diagnosed, although it does not appear that any shoulder work-up was performed. VA treatment records dated from 1983 to 1986 also reflect complaints of hiatal hernia symptoms, spasms, and neurological damage. In a 1983 VA treatment record, the Veteran was noted to be status post hiatal hernia repair with a large scar under the left scapula. In March 1984, he reported frequent spasms in the epigastrum and serratus/latissimus areas, and he was noted to need extensive wound revision and replacement of muscles. There is also evidence of post-service injuries to the left shoulder. Specifically, a December 1995 private treatment record from Dr. W.K.B. indicates that the Veteran felt a tearing sensation in the left shoulder area a few months earlier when lifting weights, which continued to bother him. Although this full record is not available, the bottom of the page appears to indicate that x-ray results showed minimal degenerative changes. Additionally, a February 2004 private treatment record from Dr. P.G.F. indicates that the Veteran had dislocated his left clavicle. A March 2005 private MRI report notes a clinical history of status post shoulder injury with constant pain in the shoulder and collarbone, evaluate for rotator cuff tear. Several diagnoses are indicated in the report. A May 2005 VA treatment record then notes that a recent private MRI showed mild degenerative joint disease and tendinosis, but no rotator cuff tear, of the left shoulder. As noted previously, the Veteran relies primarily on a May 2007 statement from his treating VA orthopedic physician indicating that his current left shoulder disability is as likely as not secondary to the service-connected hiatal hernia surgery residuals. This was based on a review of the Veteran's history, including complaints of left shoulder pain dating back to 1970. No further explanation was provided, and it does not appear that any private records were reviewed by this provider. In the prior remand, the Board directed the agency of original jurisdiction (AOJ) to offer the Veteran another opportunity to identify any outstanding treatment records concerning his left shoulder, and to afford him a VA examination to determine the nature and etiology of any current left shoulder disability, to include on direct or secondary basis. The Veteran did not respond to the AOJ's request to identify any outstanding records, but he was afforded a VA examination in January 2011. During the VA examination, the Veteran reported injuring his left shoulder during a low-speed motor vehicle accident due to the restraint from the shoulder harness. He denied any other post-service left shoulder injuries, despite the evidence in his treatment records as summarized above. The VA examiner noted the Veteran's multiple surgeries during service for hiatal hernia and subsequent complications, with no complaints or treatment for the left shoulder in particular. The VA examiner opined that there was no current degenerative joint disease, as the Veteran was status post arthroscopic resection of the lateral clavicle. The examiner also opined that the Veteran's current disability was not related to service, to include treatment for hiatal hernia, and provided a rationale. The examiner stated that medical literature did not demonstrate "with irrefutable medical evidence" that there is a higher association or incidence of degenerative conditions of the left acromioclavicular joint or of left shoulder pathological conditions in patients placed in the right lateral decubitus position for performance of a thoracotomy. The VA examiner did not mention or comment on the December 2004 private record or May 2007 VA opinion, as directed in the prior remand. Further, the examiner did not address the question of aggravation based on the service-connected residuals of hiatal hernia operation, as directed in the prior remand. Additionally, the Board notes that the examiner's statement that there was no "irrefutable medical evidence" of a relationship in medical literature appears to be more strict than the question of whether the Veteran's condition is at least as likely as not related to service, or to the service-connected hiatal hernia surgery residuals. Once VA undertakes the effort to provide an examination for a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). An opinion is considered adequate when it is based on consideration of the prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In this case, the prior remand directives were not substantially completed, and the examination is inadequate. See Stegall, 11 Vet. App. 268. Therefore, the case must be remanded for an addendum opinion with consideration of all pertinent lay and medical evidence, including but not limited to the evidence summarized herein. In addition, any outstanding VA treatment records dated from April 2008 forward should be obtained and associated with the claims file prior to requesting the opinion. The Veteran should also be notified of the requirements to establish service connection on a secondary basis in accordance with the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103A (West 2002). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran of the evidence and information necessary to establish service connection for his left shoulder disability on a secondary basis. 2. Obtain and associate with the file any VA treatment records for the Veteran dated from April 2008 forward, to include any diagnostic testing or imaging studies. If there are no such records, this should be documented. 3. Thereafter, forward the entire claims file, including a copy of this remand, to the January 2011 VA examiner for an addendum opinion. (If such examiner is not available, the file should be forwarded to another appropriate individual for an opinion. A new VA examination should be scheduled only if deemed necessary by the examiner.) Review of the claims file must be noted in the addendum report. The examiner should respond to the following: NOTE: The examiner must comment on the medical evidence concerning left shoulder injury or symptoms, specifically to include the following (which are further summarized above): the July 1970 treatment record; the July 1991 VA examination report; the December 1995, February 2004, and May 2005 private records; the March 2005 VA treatment record; and the May 2007 opinion from the VA orthopedic physician. (a) Is it at least as likely as not (i.e., a 50 percent or higher degree of probability) that any current left shoulder disability had its onset during service or is in any way related to the Veteran's active service? (b) If there is no direct relation to service, respond to the following as to secondary service connection: (i) Is it at least as likely as not that the Veteran's current left shoulder disability was caused by his service-connected disabilities, to include the service-connected residuals of hiatal hernia operation? (ii) If not, is it at least as likely as not that the Veteran's current left shoulder disability was aggravated (meaning permanently worsened beyond its normal progression) by service-connected disabilities, to include the service-connected residuals of hiatal hernia operation? If aggravation is found, the examiner must identify the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the left shoulder disability by the service-connected disability. A complete rationale must be provided for any opinion offered. The examiner is advised that irrefutable medical evidence is not necessary; rather, the question is whether the evidence "at least as likely as not" establishes a relationship. All evidence of record should be considered, including service records as well as VA and private medical evidence. Further, the Veteran's statements as to the onset and continuity of his symptoms should be considered along with the other evidence. The Veteran's statements cannot be rejected due solely to a lack of corroborating medical evidence. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination or addendum report and explain why a non-speculative opinion cannot be offered. 4. The AOJ should review the examination or addendum report and ensure that the above questions have been answered, and that the report is otherwise adequate. 5. After completing the requested actions, and any additional notification and/or development warranted, the AOJ should readjudicate the claim based on all evidence of record. If the claim remains denied, provide a supplemental statement of the case to the Veteran and his representative. Allow an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The purpose of this REMAND is to ensure compliance with due process considerations. 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. All claims 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). _________________________________________________ ERIC S. LEBOFF 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).