Citation Nr: 1308748 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-17 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a right shoulder disability, to include symptoms involving the neck and back. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty November 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) Center in Fargo, North Dakota. This issue was reopened in August 2011 and remanded for further development, and now returns again before the Board. As the Board observed in the August 2011 Remand, the May 2009 claim notes "shoulder conditions" and an April 2009 private record attributes myofascial symptoms in the shoulders to a compression fracture at T12, for which service connection is herein granted. Thus, the issue of entitlement to service connection for a left shoulder disorder is referred to the AOJ for appropriate action. 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 Veteran contends that he has a right shoulder disability that is either due to, or aggravated by, his service-connected back disability. Under pertinent VA regulations, secondary service connection will be granted when a disability is either proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (2012). Moreover, in Allen v. Brown, 7 Vet. App. 439, 448 (1995), the Court held that secondary service connection under 38 C.F.R. § 3.310 may be granted for aggravation of a Veteran's nonservice-connected condition beyond its natural progression by a service-connected condition. While an April 2009 private record attributes myofascial symptoms in the shoulders, upper back and neck to the service-connected compression fracture at T12, a rationale for the opinion was not provided, the Board observed in its prior Remand that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, the Board remanded the case in August 2011 for further development. Pursuant to the Board's prior Remand, the Veteran was afforded a VA examination in October 2011. The examiner concluded that the Veteran's right shoulder condition was less likely than not related to his service connected T12 vertebral fracture stating that there was no evidence in the Veteran's claims file that the Veteran was treated in service for any significant right shoulder pathology and the only available evidence of right shoulder surgery was in 1987, well after the Veteran's separation from service. The Board finds that the October 2011 medical opinion is inadequate. First, the examiner does not provide clear rationale for opining that the Veteran's right shoulder disability is proximately due to his back condition. The rationale provided (the lack of documented injury in service followed by a lack of documented complaints until well after service) does not explain why there is not a secondary connection between the Veteran's current disability and his back disability. There is no need to establish the presence of an in-service injury of the right shoulder to award service connection on a secondary basis. Moreover, the examination report does not address whether the Veteran's service-connected back disability aggravates his right shoulder disability. Accordingly, on Remand, the Veteran should be afforded a new VA examination that addresses the issue of entitlement to service connection on a secondary basis. The case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination to determine the nature and etiology of any current right shoulder disability. The claims file should be made available for review in conjunction with the examination and the examiner's attention should be directed to this remand. All necessary tests should be conducted. The examiner should provide responses to the following inquiries: (a) Identify any right shoulder disability that is currently shown or that has been present at any time since April 2008. (b) For each right shoulder disability identified, is it "at least as likely as not" (meaning likelihood of 50% or greater) that the disability was caused by the Veteran's service-connected compression fracture at T12. (c) For each right shoulder disability identified, is it "at least as likely as not" (meaning likelihood of 50% or greater) that the disability was aggravated beyond its natural progression by his service-connected compression fracture at T12. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner is informed that "aggravation" is defined for compensation purposes is a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. A report should be prepared and associated with the Veteran's VA claims folder. The examiner is requested to provide the basis for all opinions reached. 2. Thereafter, the claim should be readjudicated. The AOJ should ensure all directives in this remand have been accomplished, to the extent possible, to include review of any medical opinion obtained for completeness and to make certain that a response to all questions posed has been provided, and if not, further development should be undertaken in that regard. If the benefits sought on appeal remain denied, a supplemental statement of the case should be issued and the Veteran afforded a reasonable opportunity in which to respond thereto. 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. 2012). _________________________________________________ DAVID L. WIGHT 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).