Citation Nr: 1312698 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 06-15 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran INTRODUCTION The Veteran had active service from September 1966 to September 1968. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, inter alia, denied reopening the claim for service connection for a left shoulder disorder. The Board reopened the claim for service connection for a left shoulder disorder in March 2008, but remanded the merits of that issue for further development, which included obtaining additional treatment records and affording the Veteran a VA examination. That development was completed, and the case has since been returned to the Board. In October 2007, the Veteran presented testimony during a videoconference hearing before an acting Veterans Law Judge who has since retired. A transcript of that hearing is associated with the record. The Veteran was also advised in a January 2013 letter that the acting Veterans Law Judge who conducted his hearing was no longer available to consider his appeal, and he was offered the opportunity to testify at another hearing before a different Veterans Law Judge who would ultimately decide this appeal. The Veteran responded in February 2013 and indicated that he did not want a second hearing. See generally 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Therefore, the Board finds that no further hearing is necessary. 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 is seeking service connection for a left shoulder disorder. Specifically, he contends that he sustained the disorder in service when he was tossed against the beach while swimming in September 1967. He has claimed that his pain has continued and progressively worsened since service and that he now experiences weakness, fatigability, and loss of motion, which interferes with his job. The Veteran's service treatment records show that that he was diagnosed with a left acromioclavicular (AC) joint separation in September 1967 after falling 10 days earlier. During his testimony before the Board, the Veteran reported that he was allowed a short period of time for recuperation before returning to combat duty. He indicated that he had continued to experience pain, but was not able to seek additional treatment at that time. The Veteran referred to the injury on several subsequent occasions in service, but he did not report any left shoulder pain or other residuals during his August 1968 separation physical examination, and no shoulder disorders were noted on objective examination. However, during a VA examination in October 1968, the Veteran did report a left shoulder injury in service resulting in an AC separation and ongoing pain in his left shoulder. On examination, there was no evidence of an AC separation, and the Veteran exhibited a full range of motion of the shoulder. The examiner did note that there was pain to palpation in the left shoulder area, but no shoulder pathology was seen on x-ray. The examiner diagnosed the Veteran with posttraumatic residuals of the left shoulder with a healed acromioclavicular separation. The claims file contains VA medical records dated between February 1983 and December 2001, which reflect that the Veteran complained of left shoulder pain on multiple occasions. In this regard, the Veteran was afforded a VA examination of his back and shoulder in April 1983 during which he complained of vague left shoulder pain and numbness along the distribution of the left hand. The examiner's impression was vague musculoskeletal left shoulder pain without definite etiology. He concluded that the Veteran had no appreciable disability, but recommended pain medication and physical therapy for the left shoulder. The Veteran also complained of left shoulder pain in March 1992, which he felt was related to an injury in service. Although an x-ray and EMG were normal, the Veteran had tenderness of the left biceps tendon. The examiner assessed him as having tendonitis or subacromial bursitis and referred the Veteran to the orthopedic clinic. In June 1992, the Veteran was noted to have a three year history of bilateral shoulder pain with the left being greater than the right. The provisional diagnosis at that time was bursitis versus tendonitis. The Veteran returned to the orthopedic clinic again in June 1993 with complaints of bilateral shoulder pain. The Veteran was also seen with complaints of left shoulder pain in December 2001. An x-ray on that date was within normal limits. Shoulder arthropathy was later diagnosed in February 2005, although the Veteran had full range of motion in the left shoulder with no muscle weakness. The claims file also contains a private treatment note from K.M., M.D. (initials used to protect privacy), who reported that the Veteran complained of bilateral shoulder pain and referred to an in-service injury to his shoulders. The Veteran told Dr. K.M. that his pain had progressively worsened over the years and that he had shoulder pain at night. Dr. K.M. noted that an x-ray of the shoulders showed a normal glenhumeral joint and arthrosis of both AC joints, right greater than left. He diagnosed the Veteran with bilateral impingement and arthrosis of AC joints. A private treatment note received in October 2008 also states that the Veteran has "a long history of arthritis pain in the shoulders even though he has normal function." It further states that the Veteran had multiple injuries in the past, which cause him pain when using his arms. Pursuant to the Board's March 2008 remand directives, the Veteran was afforded a VA examination of his left shoulder in February 2009. The examiner indicated that she had reviewed the claims file prior to the examination. The examiner noted that June 2008 x-rays showed a density adjacent to the left glenoid, which may represent a labral calcification versus loose body. There was no evidence of arthritic changes in the left shoulder. The examiner stated that, if the Veteran's current problems were caused by the left shoulder trauma 40 years earlier, he would likely have "a rather impressive x-ray of that shoulder," as well as more documented problems. Therefore, she opined that it is less likely than not that his current left shoulder problem is related to the injury in service. Although the February 2009 VA examiner indicated that she had reviewed the claims file, she made no specific reference to the Veteran's complaints of left shoulder pain in October 1968, April 1983, March 1992, June 1992, June 1993, December 2001, and February 2005, which provides some support to his claim that he has had a left shoulder disorder since service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any current left shoulder disorder that may be present. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should refer the Veteran's claims folder to the February 2009 VA examiner or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any left shoulder disorder that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current left shoulder disorders and specifically state whether the Veteran has arthritis. For each diagnosis identified, the examiner should state when the disorder first manifested and whether it is at least as likely as not that disorder is related to the Veteran's injury and symptomatology in service or is otherwise causally or etiologically related to his military service. In rendering the requested opinion, the examiner should address the evidence suggesting some ongoing left shoulder pain, including the October 1968 and April 1983 VA examination reports and the post-service medical records dated in March 1992, June 1992, June 1993, December 2001, and February 2005 (referenced in the remand), and indicate whether such evidence has any effect on her prior opinion. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A complete rationale for any opinion expressed must be provided. 2. The RO/AMC should review the record and complete any further development that may be deemed necessary. Thereafter, the RO/AMC should readjudicate the issue on appeal. If the claim remains denied, the RO/AMC should issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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). ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals