Citation Nr: 1311581 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 09-32 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a left shoulder disability, to include as secondary to a service-connected right shoulder disability. 2. Entitlement to a rating higher than 30 percent rating for a right shoulder disability from April 1, 2003 to November 19, 2007. 3. Entitlement to a rating higher than 40 percent rating for a right shoulder disability effective November 19, 2007. 4. Entitlement to a total disability rating based on individual unemployability (TDIU rating). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from September 1964 to March 1965 and from July 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2002, September 2007, and April 2008 RO rating decisions, which denied the benefits sought on appeal. In August 2011, the Veteran testified at a Travel Board hearing at the RO. In January 2012, the Board remanded this case for further development. In a March 2012 rating decision the RO increased the Veteran's disability rating to 40 percent effective November 19, 2007. Since the grant does not represent a total grant of benefits sought on appeal, the claims for increased ratings remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In August 2012, the Board sought a medical opinion from the Veterans Health Administration (VHA), which was submitted in October 2012. The Board then provided the Veteran with a copy of the opinion and the opportunity to submit additional argument and evidence by correspondence date in November 2012 letter. The Veteran subsequently submitted additional argument and evidence and waived the right to have the evidence considered by the RO. The claims for increased ratings for a right shoulder disability and the claim for entitlement to a TDIU rating are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT The most probative evidence indicates that the Veteran's left shoulder disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin, or a service-connected disability. CONCLUSION OF LAW A left shoulder disability was not incurred in or aggravated by service, may not be presumed to have been incurred in service, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1112, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters sent in March 2007 and May 2008. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006). Thereafter, the claim was readjudicated in the March 2012 supplemental statement of the case. The claimant was provided the opportunity to present pertinent evidence. The Virtual VA file, Social Security Administration records, and available private and VA treatment records have been obtained. In addition, he has been provided with VA examinations in connection with his present claim, and a VHA expert medical opinion was obtained. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Service connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (2012). Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Establishing service connection on a secondary basis essentially requires evidence sufficient to show that a current disability exists, and that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. §§ 3.303, 3.310 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran seeks service connection for a left shoulder disability on the basis that it was caused or aggravated by service, or his service-connected right shoulder disability. He essentially maintains that due to his service-connected right shoulder disability, he compensated with his left arm which caused a left shoulder disability. The Veteran's service treatment records document a right shoulder contusion in August 1966. The service treatment records do not show complaints, findings, or diagnoses consistent with left shoulder problems, and on separation from service in July 1967 the Veteran's left shoulder was clinically evaluated as normal. After service, a private treatment record in January 1995 notes complaints of low back pain, as well as progressive complaints in the shoulder and neck for the past 1 to 2 years. The clinician reported impaired abduction in both shoulders, greater on the right. It was noted that an underlying connective tissue disease was suspected. A VA treatment note in March 2002 recorded complaints of bilateral shoulder pain with severe limitation of active range of motion, bilaterally. On VA QTC examination in March 2002, the Veteran did not lift his hands or arms above his shoulders. He was unable to abduct bilaterally more than 90 degrees, flexion was to 40 degrees on the right and the left shoulders, abduction was to 80 degrees on the right and 90 on the left, and external and internal rotation was to 30 degrees, bilaterally. X-rays revealed mild osteoarthritis of the left AC joint. An April 2002 private evaluation report reflects complaints of pain in multiple joints, to include the shoulders, hips, back, neck, knees and ankles. The Veteran related onset of pain for 8 to 10 years. He denied injury or trauma. The Veteran described severe pain, burning sensation, sharp shooting spasms, and numbness. The impression was osteoarthritis as well as diffuse myofascial pain syndrome, with question of somatization. Subsequent post-service private and VA treatment records show treatment for variously diagnosed left shoulder problems on numerous occasions. A July 2007 VA treatment report reflects that the Veteran complained of increasing bilateral shoulder pain. The Veteran reported that his right shoulder pain was from a military injury and that he was presently compensating with his left shoulder, and had left shoulder pain. He indicated that his pain was constant. As to an assessment, the examiner stated that she suspected that much of the Veteran's (bilateral shoulder) pain was due to osteoarthritis and fibromyalgia. The assessment also included other disorders. On VA examination in January 2008 contained a diagnosis of bilateral shoulder rotator cuff syndrome that was symmetrical, bilaterally. The examiner determined that the left shoulder condition was unrelated to service. The examiner explained that the condition did not become manifest for many years after discharge from service. In this regard, the Veteran reported symmetrical bilateral shoulder symptoms in 2002, 35 years after service. The examiner further noted the Veteran's generalized musculoskeletal pain and recent onset of chronic fatigue syndrome, fibromyalgia and related diffuse joint pain. A December 2008 VA rheumatology consultation report noted the Veteran's report of pain in his hips, knees, ankles, and shoulders over the years. He stated that his shoulders and the surrounding areas were painful. As to an assessment, the examiner indicated that the Veteran's right shoulder that had been injured severely with very limited range of motion, with a need for a magnetic resonance imaging (MRI) study. The rheumatologist indicated that the Veteran's left shoulder was more concerning, due to a lack of injury, and because it was so limited and the Veteran had bilateral arm symptoms. The rheumatologist diagnosed right rotator cuff tendonitis. A left shoulder disability diagnosis was not reported. The rheumatologist reported that the she thought it was plausible that the overuse of the left shoulder would cause pain. The rheumatologist noted that she was worried about a neuropathic process. The rheumatologist recommended x-rays and a MRI study of the cervical spine and x-rays of the left shoulder, as well as EMG/NCV studies of the upper extremities to sort out neuropathic aspects of the arm pain and parasthesias. The rheumatologist also indicated that the Veteran had fibromyalgia and that the tender points were pronounced, as well as Lyme disease. The rheumatologist remarked that the fibromyalgia was not the underlying disorder and that it was secondary to osteoarthritis as the primary process. A March 2009 VA orthopedic examination report reflects that the Veteran reported onset of left shoulder pain 20 years earlier. Following a review of the Veteran's claims file and an examination of the Veteran, the examiner diagnosed shoulder pain. The examiner indicated that he was not able to offer an opinion as to whether the Veteran's left shoulder pain was caused by his service-connected right shoulder disability because he would be resorting to mere speculation in such a case. The examiner stated that if there was a question of weight bearing in the lower extremities, he would probably favor adding to the Veteran's service-connected issues. It was noted that the Veteran reported pain in multiple other joints, as well as his shoulders. The examiner indicated that he would have liked to have obtained cervical spine films, as well as left shoulder films, but that the Veteran declined. The examiner reported that the Veteran's presentation was consistent with fibromyalgia. An April 2009 VA treatment entry indicates that the Veteran continued to have severe right shoulder pain causing left shoulder compensatory pain. The Veteran also reported that he would have "jolting" pain that radiated down his bilateral arms, as well as aching in the arms. The assessment, at that time, included paresthesias/joint pain. A February 2012 VA orthopedic examination report indicates that the Veteran's claims folder was reviewed. The diagnoses were adhesive capsulitis and rotator cuff syndrome of the right shoulder and degenerative arthritis of the left shoulder. The examiner commented that it was less likely than not that the Veteran's left shoulder disability was due to or the result of the Veteran's service-connected right shoulder disability. The examiner reported that the Veteran had an injury to his right shoulder in the Navy in approximately 1966. It was noted that the Veteran worked as an airline pilot until the right shoulder problem started worsening in the 1990s and that he went out on disability in 1995 because of his right shoulder problem. The examiner stated that the Veteran underwent a right shoulder acromioplasty and manipulation under anesthesia in 2003. The examiner indicated that the Veteran reported that there was temporary improvement of his right shoulder, but that he again began to have pain and limited range of motion. The examiner stated that the Veteran reported that he began to have pain and limited range in his left shoulder about seven years ago. It was noted that the Veteran had no range of motion in either shoulder, as well as an inability to use both arms. The examiner discussed a few of the treatment reports in the Veteran's claims file. The examiner indicated that, in summary, the Veteran had multiple musculoskeletal problems, including myofascial pain syndrome, probable fibromyalgia, osteoarthritis of multiple joints, and limitations on the physical examination that were out of proportion to his pathological process. The examiner opined that it was less likely than not that the Veteran's left shoulder problem was caused by his right shoulder injury from 1966 in the military that resulted in surgery in 2003. The examiner also remarked that it was less likely than not that the Veteran's left shoulder problem was aggravated by the right shoulder injury. The Board determined that the VA examiner's opinion was insufficient to decide the Veteran's claim on the merits as the VA examiner did not discuss any of the treatment reports of record that show a possible relationship between the Veteran's left shoulder problems and his service-connected right shoulder disability, such as the July 2007 VA treatment report, the December 2008 VA rheumatology consultation report, or the April 2009 VA treatment entry. The Board also found that the rationale for the examiner's opinion that the Veteran's left shoulder problem was not caused or aggravated by his service-connected right shoulder disability appeared to solely be that the Veteran had multiple other musculoskeletal problems and that his limitations on the physical examination were out of proportion to his pathological process. As such, in August 2012 the Board sought an expert opinion from the VHA as to the nature and etiology of the Veteran's left shoulder complaints. In an opinion in October 2012, the reviewing VHA physician concluded that it was less likely than not that any currently diagnosed left shoulder disability was etiologically related to the Veteran's periods of service, based on the lack of complaints pertaining to the left shoulder in service, the etiology of the original injury and the treatment records, and the lack of clinical findings pertaining to the left shoulder following service discharge until approximately 40 years later. The examiner further opined that the Veteran's service-connected right shoulder disability did not cause or aggravate the left shoulder disability. The examiner noted that there was a lack of complaints of left shoulder problems for more than 40 years after the in-service right shoulder contusion noted in August 1966. If the Veteran had developed a left shoulder compensatory disability it would have become manifest earlier. The examiner concluded that the Veteran's left shoulder condition was part of a systemic process, to include diagnoses of fibromyalgia, myofascial pain, osteoarthritis and limitations out of proportion with the pathological process. There was no evidence of neurological impairment. The Veteran was seen on several occasions by multiple healthcare practitioners for generalized body complaints throughout the years, but in 2007, when the Veteran was seen for complaints pertaining to the left shoulder, there was no description of a change in activity or new trauma. If the Veteran had developed a compensatory disability secondary to the right shoulder in-service injury the left shoulder would have shown function to some degree when compare to the right shoulder. Instead, physical examination showed similar findings with respect to both shoulders, essentially, both shoulders exhibited marked decreased range of motion. Findings consistent with bilateral objective limitations in the right and left shoulder supported a global or systemic problem. There was no evidence that the left upper extremity was used in a compensatory manner. For these reasons the VHA physician noted that the medical evidence was inconsistent with the December 2008 VA rheumatologist's findings. The Board must assess the Veteran's competence and credibility to assert that his left shoulder disability had onset in service or is secondary to a service connected disability. A Veteran is competent to testify to factual matters of which he had first-hand knowledge. The Board finds that the Veteran is competent to report that he left shoulder pain in service and since service. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2) (2012). To the extent that the Veteran reports continuity of symptomatology since service, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, can be competent, despite the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Here the Board finds that contentions of continuity of symptoms associated with a left shoulder disability since service are not credible because they are inconsistent with the evidence of record. Service treatment records are negative for any diagnosis or treatment for a left shoulder disorder, including upon a separation physical examination in July 1967. Accordingly, the Board finds that the service medical records lack the combination of manifestations sufficient to identify a chronic left shoulder disability. Post-service a private medical report in January 1995 noted complaints of shoulder pain with impaired abduction in both shoulders, however, an underlying connective tissue disease was suspected at that time. Thereafter, VA treatment records in 2002 noted complaints of bilateral shoulder pain and x-rays revealed mild osteoarthritis of the left AC joint. The evidence does not show that left shoulder arthritis manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Additionally, in view of the period without evidence of complaints or treatment pertaining to the left shoulder from 1967 to 1995, and the lack of clinical findings or complaints prior to 2002, the Board finds that the evidence is against a finding of a continuity of treatment, which weighs against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board has weighed statements made by the Veteran as to incurrence of a left shoulder disability during service and continuity of symptomatology and finds the current recollections and statements made in connection with a claim for benefits to be of less probative value. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board recognizes the Veteran's contentions as to the diagnosis and relationship between the service-connected right shoulder disability and his left shoulder condition. The Board acknowledges that he is competent to give evidence about what he experienced; for example, he is competent to discuss symptoms of pain in the left shoulder and restricted motion, and other observable problems. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the diagnosed left shoulder degenerative changes and its medical causation are not subject to lay observation or assertion, and fall outside the realm of common knowledge of a lay person. The diagnosis was based on clinical findings, to include radiographic studies. For this reason, the left shoulder condition is not a simple medical condition that the Veteran is competent to etiologically relate to any medical disability or disorder as he is not shown to be qualified through education, training, or experience to interpret clinical findings of a disease process or interpret diagnostic studies and determine its etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Given the complex nature of the disability his assertions do not constitute competent medical evidence that he suffers from a left shoulder disorder, to include arthritis, that is a result of service or a service-connected disability, to include the right shoulder disability. On the question of medical causation or medical evidence of an association or link between a left shoulder disability, first noted after service, and service or a service-connected disability, to include the right shoulder condition, there is evidence both for and against the claim. 38 C.F.R. § 3.303(d) (2012). With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, which may include a review of medical literature; and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Also, the probative value of a medical opinion is generally based on the relative merits of the analytical findings, and the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444 (2000). The evidence in support of his claim, consists of the VA rheumatologist opinion who in December 2008 reported that the she thought it was plausible that the overuse of the left shoulder would cause pain. The medical opinion from the rheumatologist is a mere conclusion without medical analysis and is insufficient to allow the Board to make an informed decision as to what weight to assign against contrary evidence on the question of whether the Veteran's left shoulder disability developed as secondary to the service-connected right shoulder condition. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign the opinion). Accordingly, the opinion is of little probative value and is not persuasive medical evidence of a nexus between the Veteran's current left shoulder disorder and the service-connected right shoulder disability. The record also contains VA clinical treatment notes dated in July 2007 and April 2009, which refer to a possible relationship between his left shoulder problems and his service-connected right shoulder disability. The April 2009 VA treatment entry indicates that the Veteran continued to have severe right shoulder pain causing left shoulder compensatory pain. The Board notes that to the extent that these VA clinicians have associated the Veteran's left shoulder condition to the right shoulder disability, those statements are based on the history provided by the Veteran, and as previously noted, given the complex nature of the Veteran's disability his assertions do not constitute competent medical evidence that he suffers from left shoulder disorder is a result of the right shoulder disability. A bare transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional is a VA or private physician. LeShore v. Brown, 8 Vet. App. 406 (1995). The evidence against the claim is the medical opinion of the VHA medical expert in October 2012 who opined that the Veteran's current left shoulder disorder was not due to service or a service-connected disability, to include the right shoulder condition. In an opinion in October 2012, the reviewing VHA physician opined that it was less likely than not that any currently diagnosed left shoulder disability was etiologically related to the Veteran's periods of service, based on the lack of complaints pertaining to the left shoulder in service, the etiology of the original injury, the treatment records, and the lack of clinical findings pertaining to the left shoulder following service discharge until approximately 40 years later. The examiner further opined that the Veteran's service-connected right shoulder disability did not cause or aggravate the left shoulder condition. The examiner noted that there was a lack of complaints of left shoulder problems for more than 40 years after the in-service right shoulder contusion noted in August 1966. If the Veteran had developed a left shoulder compensatory disability it would have become manifest earlier. The examiner concluded that the Veteran's left shoulder condition was part of a systemic process, to include diagnoses of fibromyalgia, myofascial pain, osteoarthritis and limitations out of proportion with the pathological process. There was no evidence of neurological impairment. The Veteran was seen on several occasions by multiple healthcare practitioners for generalized body complaints throughout the years, but in 2007, when the Veteran was seen for complaints pertaining to the left shoulder, there was no description of a change in activity or new trauma. If the Veteran had developed a compensatory disability secondary to the right shoulder in-service injury the left shoulder would have shown function to some degree, as opposed to the right shoulder. Instead, physical examination showed similar findings with respect to both shoulders, essentially, both shoulders exhibited marked decreased range of motion. Findings consistent with bilateral objective limitations in the right and left shoulder supported a global or systemic problem. There was no evidence that the extremity was used in a compensatory manner. For these reasons the VHA physician noted that the medical evidence was inconsistent with the December 2008 VA rheumatologist's findings. Additionally, VA examiners in January 2008, March 2009 and February 2012, also determined that the Veteran's current left shoulder disorder was not due to service or a service-connected disability, to include the right shoulder condition. To the extent that the VHA physician attributed the Veteran's shoulder pain complaints to a systemic process, the evidence of record supports the opinion. As previously noted, in January 1995 the Veteran complained of pain in multiple joints, to include the shoulders, for the past 1 to 2 years. It was noted that an underlying connective tissue disease was suspected. An April 2002 private evaluation report recorded complaints of pain in multiple joints, to include the shoulders, with onset of pain for 8 to 10 years. The impression was osteoarthritis as well as diffuse myofascial pain syndrome, with question of somatization. In July 2007 VA treatment report reflects an assessment of bilateral shoulder pain thought to be due to osteoarthritis and fibromyalgia. On VA examination in March 2009 it was noted that the Veteran reported pain in multiple other joints, as well as his shoulders, consistent with fibromyalgia. Finally, the VA examiner in February 2012 also found it significant that the Veteran had multiple musculoskeletal problems, including myofascial pain syndrome, probable fibromyalgia, osteoarthritis of multiple joints, and limitations on the physical examination that were out of proportion to his pathological process. The Board assigns greater weight to the opinions of VHA physician because the VHA physician has specialized expertise in the area of orthopedic disorders and is able to render a competent opinion regarding the likelihood that the claimed disorder is related to service or a service connected disability. Also, the VHA physician's opinion is based on review of the claims folder, to include the Veteran's service treatment records, post-service VA and private treatment records, and VA examination reports, and refers to relevant documentation in the claims file, to include the opinion of the VA rheumatologist rendered in December 2008. The physician also addressed the Veteran's reports of developing a compensatory left shoulder disorder due to the right shoulder disability and explained, based on sound medical principles, why the Veteran's left shoulder condition was not caused or aggravated by the right shoulder disability. Significantly, the VHA opinion is consistent with the evidence of record. In this regard, on VA examination in January 2008 the examiner determined that the left shoulder condition was unrelated to service because it did not become manifest until many years after discharge from service. As for service connection of the left shoulder as secondary to the right shoulder disability, the VA examiner in February 2012 opined that it was less likely than not that the Veteran's left shoulder disability was caused by his right shoulder injury from 1966 in the military that resulted in surgery in 2003. The examiner also remarked that it was less likely than not that the Veteran's left shoulder problem was aggravated by the right shoulder injury. Thus, in summary, the most credible and probative evidence shows that a left shoulder condition, to include arthritis, manifested more than 1 year after discharge from service and is not otherwise related to service or a service-connected disability. As such, the preponderance of the evidence weighs against the award of service connection for a left shoulder disability and the claim must be denied. In reaching these conclusions, the Board notes that, under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be given to the claimant in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim in this case, and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left shoulder disability is denied. REMAND The Veteran contends that he is entitled to higher disability ratings than those currently assigned for his service-connected right shoulder disability. Specifically, in statements and at hearing, he reports having neurological manifestations that include numbness and tingling of the right hand and fingers, as well as orthopedic symptoms such as pain and limitation of motion of motion, which he attributed to the service-connected right shoulder condition. It is possible for a Veteran to have separate and distinct manifestations from the same injury, which would permit rating under several diagnostic codes. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (where a Veteran with a service-connected facial injury sought an increased rating, the Veteran's disability was to be properly assigned compensable ratings under separate codes for disfigurement, tender and painful scars and muscle injury). Here, VA and private treatment records reflect complaints of neurological symptoms in the right arm. However, it is unclear from the medical evidence whether the Veteran's right upper extremity neurological complaints are a manifestation of the right shoulder disability or are due to a nonservice-connected disability. In this regard, an April 2002 private evaluation report recorded complaints of severe pain, burning sensation, sharp shooting spasms, and numbness, along with an impression of osteoarthritis and diffuse myofascial pain syndrome, with question of somatization. A December 2008 VA rheumatology consultation noted the possibility of neuropathic involvement and recommended x-rays and a MRI study of the cervical spine and x-rays of the left shoulder, as well as EMG/NCV studies of the upper extremities to sort out neuropathic aspects of the arm pain and parasthesias. However, on VA examination in March 2009, the examiner indicated that he would have liked to have obtained cervical spine films, as well as left shoulder films, but that the Veteran declined. The examiner reported that the Veteran's presentation was consistent with fibromyalgia. Thereafter, an August 2009 neurology consultation report showed that the Veteran did not tolerate the EMG and NVC testing beyond the median nerve test. Median motor study showed normal latency and normal conduction velocity. It was recommended that the test not be repeated until his right shoulder and elbow pain was brought under control. Accordingly, in January 2012 the Board remanded the claim for a VA examination of the right shoulder disability that considered both orthopedic and neurological manifestations of the right shoulder. The examiner was specifically asked to identify and discuss the nature and extent of any neurologic impairment related to the Veteran's right shoulder disability. While the Veteran underwent a VA orthopedic examination in February 2012, the examination only focused on the orthopedic manifestations of the right shoulder disability and did not address the Veteran's neurological complaints. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order; where the remand orders of the Board were not complied with, the Board itself errs in failing to insure compliance; in such situations the Board must remand back to RO for further development. Stegall v. West, 11 Vet. App. 268 (1998). In this case, a specific question posed by the Board was not answered by the examiner, so the examination does not substantially comply with the terms of the remand. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The case must accordingly be returned to afford the Veteran a VA examination to identify any orthopedic and neurological findings related to the service-connected disability and fully describe the extent and severity of those symptoms. Next, relevant ongoing medical records should also be obtained, to include any VA treatment records. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Finally, the Board notes as the Veteran's claim for a TDIU rating is inextricably intertwined with his claims for increased ratings for a right shoulder disability, which if granted, could affect whether the Veteran meets the schedular criteria for a TDIU, the Board defers consideration of the claim pending adjudication of the inextricably intertwined claims for higher disability ratings for a right shoulder disability. See Harris v. Derwinski, 1 Vet. App. 180. 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from individuals that have first-hand knowledge, and/or were contemporaneously informed of symptomatology associated with the service-connected right shoulder disability including any related occupational impairment(s). The Veteran should be provided a reasonable amount of time to submit this lay evidence. 2. Obtain, either electronically or physically, all treatment records for treatment received at the VAMC dated since February 2012. All attempts to obtain these records must be documented in the claims file. 3. Schedule the Veteran for the appropriate VA examination to determine the severity of his service-connected right shoulder disability. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted, including x-ray, and all symptoms associated with the Veteran's right shoulder disability should be described in detail. Specifically, the examiner should conduct a thorough examination of the Veteran's right shoulder disability and provide a diagnosis of any pathology found, to include any neurological pathology. The examiner is specifically asked to identify and discuss the nature and extent of any neurologic impairment of the right shoulder related to the Veteran's right shoulder disability. If the Veteran is unable to perform tests due to disability, the examiner should estimate the level of the Veteran's impairment. The examiner should also provide an opinion as to the impact of the Veteran's service-connected right shoulder disability on his ability to obtain or maintain employment. All findings and conclusions should be set forth in a legible report. 4. Then readjudicate the appeal, to include the Veteran's claim for entitlement to a TDIU. If the claims remain denied, issue a supplemental statement of the case to the Veteran and his representative and provide an opportunity to respond before the case is returned to the Board. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs