Citation Nr: 1308957 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 10-16 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1953 to July 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board remanded the issue of entitlement to service connection for a right shoulder disorder was remanded in August 2012 for a new examination. Also remanded at that time was the issue of entitlement to service connection for hearing loss. By way of a January 13, 2013 rating decision, the RO granted service connection for hearing loss; as such, that issue is no longer before the Board. A review of the Virtual VA paperless claims processing system reveals pertinent VA treatment records dated from April 2001 to March 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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 This matter must be remanded for an addendum from the November 2012 examiner to clarify the opinion he provided regarding service connection. In the August 2012 remand, the Board requested that VA provide the Veteran with a shoulder examination to determine whether he had a shoulder disability that had its clinical onset during service, or otherwise was due to an event or incident of the Veteran's service. In providing an opinion, the examiner was instructed to consider the Veteran's statements concerning the incurrence of his disorder and the continuity of his symptomatology. Specifically, the Board pointed out that the Veteran associated his right shoulder disorder with his repetitive rifle shooting while in service. In the remand, the Board referred the examiner to a January 2009 private treatment note from the Monroe Clinic documented the Veteran's complaints of right shoulder pain and discomfort that had lasted for "years," and another note in which Dr. L.S. observed that the right rotator cuff tear "appear [ed] to be an older injury." Further, the Board referenced a May 2009 opinion from Dr. J.D., that the type of repetitive trauma sustained as a rifle shooter for six years "could explain with a reasonable degree of medical certainty [the Veteran's] subsequent shoulder difficulties." The November 2012 VA examiner, in providing a negative nexus opinion, only relied on a January 2009 statement from the Veteran to a private treatment provider that he had experienced three months of shoulder pain, and did not address the treatment notes referenced by the Board that suggested that the shoulder disorder had caused shoulder pain for a much longer period of time. The examiner stated that because there were no records from the service treatment records or from the immediate years after service ("the early 1960s"), it was less likely than not that his current right shoulder tear and degenerative joint disease was related to service. In addition to omitting consideration of relevant medical records in reaching that conclusion, the examiner failed to address whether the Veteran's repetitive rifle shooting in service could have caused his ultimate shoulder disorder, and failed to discuss the Veteran's contention that his shoulder disorder has caused painful symptomatology since service. The Board finds that the Veteran is competent to report that he experienced right shoulder symptoms since service. He is also competent to report current symptoms that form the basis for a diagnosis of disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The absence of documented treatment is service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In rendering the new opinions, the examiner should consider the Veteran's statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relief on the absence of evidence in the service treatment records to provide a negative opinion). VA may not simply disregard lay evidence because it is unaccompanied by contemporaneous medical evidence. As such, the RO should ask the examiner to provide a new opinion, addressing all of the relevant evidence, including the Veteran's reported history of shoulder pain, and opining as to whether it is at least as likely as not that the present shoulder disorder was caused by any injury or repetitive trauma in service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should request that the physician who conducted the November 2012 VA examination review the entire claims file, including this Remand, and provide an addendum to his previous report (another examination is not required). The claims folder should be made available to and be reviewed by the examiner and a explanation for the opinion offered must be included in the report provided. Explanations of the principles involved would be of considerable assistance. The examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that his right shoulder disorder is etiologically related to his period of service from April 1953 to July 1961. The examiner must specifically acknowledge and discuss the Veteran's competent report that he hurt his shoulder while shooting in the service as a result of repetitive rile shooting, as well as his statements of continuous symptoms of those conditions during and after service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relief on the absence of evidence in the Veteran's service medical record to provide a negative opinion). The examiner should also specifically address the Veteran's January 2009 statement that his right shoulder pain had been ongoing for years, the January 2009 note from Dr. L.S. that the shoulder disorder appeared to be the result of an older injury, and the May 2009 opinion from Dr. J.D., associating the shoulder disorder with repetitive rifle shooting while on active duty. If the examiner determines that additional physical examination is required, or if the examiner is not available and another medical professional cannot render the requested opinion based upon the evidence of record, an examination should be scheduled. 2. The RO/AMC should ensure that the examiner report complies with this remand and that the questions presented in the RO/AMC's examination request. If the report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. 3. When all of the requested development above has been completed, the case should be reviewed based on any additional evidence submitted. If the benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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. 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). _________________________________________________ CHERYL L. MASON 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).