Citation Nr: 1314516 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 04-38 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to an initial rating greater than 10 percent for a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from September 1977 to September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2003 and July 2005 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Reno, Nevada and Montgomery, Alabama, respectively. The claims file is currently under the jurisdiction of the VA RO in Montgomery, Alabama. 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 With respect to the Veteran's claim for entitlement to an initial evaluation greater than 10 percent for a left shoulder disorder, review of the evidence of record reflects that there are additional private treatment records identified by the evidence of record which are pertinent to the Veteran's claim and have not yet been associated with the claims file. Specifically, during his January 2013 hearing before the Board, the Veteran testified that he had additional treatment for his left shoulder from a private hospital, and that he wished to have those records considered by VA in the adjudication of his claim. Accordingly, the RO should contact the Veteran and work with him to obtain those private treatment records. Additionally, although the Veteran underwent a VA examination with regard to the severity of his left shoulder disorder in March 2012, he testified at his January 2013 hearing that his left shoulder disability had worsened since his last VA examination. Therefore, the RO should provide the Veteran with a new VA examination to determine the current severity of his left shoulder disorder. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993) (holding that a new medical examination is required when a veteran asserts or provides evidence that a disability has worsened or the available evidence is too old for an adequate evaluation of the current condition); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (observing that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). With regard to the Veteran's claim for entitlement to service connection for a right shoulder disorder, in accordance with the Board's August 2010 remand, the Veteran underwent a VA examination addressing the etiology of his right shoulder disorder in March 2012. In a May 2012 addendum, the examiner provided an opinion that the Veteran's right shoulder disorder was not related to his active duty service because there was no evidence of symptoms of a right shoulder disorder during service. Although the Veteran's service treatment records do not show complaints of a right shoulder disorder during service, the Veteran has provided lay statements that he injured his right shoulder during service in December 1979 while loading bombs. He stated that he sought medical treatment during service, but that his complaints of right shoulder pain were ignored because a test for tuberculosis was positive, and the medical staff were more concerned with treating him for tuberculosis. However, he noted that he still had right shoulder pain during service, and stated that he has had right shoulder symptoms continually since that time. Thus, although the Veteran's service treatment records may not document treatment for a right shoulder disorder during service, the Veteran has provided competent statements regarding an in-service right shoulder injury and symptomatology during and after service. This competent evidence was not considered by the VA examiner. Because the examiner's opinion was based on the rationale that the evidence did not show an in-service right shoulder injury or symptoms, and because the Veteran has provided competent lay statements that he injured his right shoulder during service, had symptoms of a right shoulder injury during service, and has continued to have right shoulder symptoms since then, the Board finds that the VA examiner's opinion as to the etiology of the Veteran's right shoulder disorder is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). Accordingly, the Veteran should be provided with a new VA examination addressing the etiology of his right shoulder disorder. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to provide him an opportunity to identify all VA and non-VA medical providers who have treated him for his left shoulder disorder. The RO must then attempt to obtain copies of the related medical records that are not already in the claims file, to include all private treatment records identified by the Veteran during his January 2013 Board hearing. Regardless of whether the Veteran responds, the RO must obtain all updated VA treatment records related to the Veteran's left shoulder disorder. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts to obtain the named records, the RO is unable to secure same, the RO must notify the Veteran and his representative and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Provide the Veteran with a new VA examination to determine the current severity of his service-connected left shoulder disorder. Make the claims file and a copy of this remand available to the VA examiner in conjunction with the examination. The examiner must also review all pertinent treatment records contained in the Veteran's Virtual VA e-folder. The VA examiner must report all pertinent symptomatology and findings in detail. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. Any further studies deemed relevant by the examiner must also be conducted. The examiner must state the range of motion of the left shoulder, in degrees, noting the normal range of motion of the shoulder for comparison. The examiner must also state whether there is any evidence of dislocation of the left shoulder, nonunion with loose movement, or malunion of the left shoulder. If pain on motion of the left shoulder is shown, the examiner must state at what degree the pain begins. The same range of motion studies must then be repeated after repetitions. The examiner must indicate whether there is any favorable or unfavorable ankylosis of the left shoulder. The examiner must state whether there is any functional loss caused by the Veteran's left shoulder disability, including whether there is any functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of the joint. Additionally, an opinion must be stated as to whether any pain found in the left shoulder could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional limitation of motion due to pain on use or during flare-ups. Finally, the examiner must provide an opinion as to whether the Veteran's subjective reports of his symptoms are consistent with the objective clinical findings and must describe the functional limitations resulting from the Veteran's left shoulder disorder. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. Provide the Veteran with a new VA examination to determine the etiology of his right shoulder disorder. Make the claims file and a copy of this remand available to the VA examiner in conjunction with the examination. The examiner must also have all pertinent treatment records contained in the Veteran's Virtual VA e-folder available for review in conjunction with the examination. All necessary diagnostic testing should be conducted and commented upon by the examiner. Pertinent documents should be reviewed, including the service treatment records and the Veteran's statements, especially his January 2013 Board hearing testimony. The examiner must then offer an opinion as to whether the Veteran's right shoulder disability is at least as likely as not (50 percent probability or greater) related to his military service. The examiner must fully explain all stated opinions, citing to specific evidence or records, including the Veteran's lay statements, as appropriate. 4. Notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of his claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled VA examinations must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report to the examinations, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. When the above development has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue an additional supplemental statement of the case to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. 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). _________________________________________________ L. M. BARNARD Acting 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).