Citation Nr: 1314698 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 08-14 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for status post repair of right rotator cuff, claimed as a right shoulder condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from December 1979 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board previously remanded the case for additional development in September 2011. The development included providing the Veteran with notice on how to substantiate a claim for service connection for a preexisting disability as well as to obtain a current examination with a medical opinion. The remand also instructed that certain outstanding prior VA treatment records, as well as outstanding ongoing VA treatment records, be obtained. On remand, the AMC provided the Veteran with the requested notice in October 2011. He responded to the letter that same month. The AMC also obtained paper treatment records for the Veteran from May 2004 to October 2004. A review of Virtual VA reflects additional VA electronic treatment records dated in 2004 and from October 2011 to February 2012 were obtained. The Veteran was afforded a VA examination in October 2011. The examiner stated that he had reviewed the claims folder and said no other records were reviewed. Current x-rays of the right shoulder were taken and the x-ray report included with the examination. The current x-ray report said that there was no interval change from prior x-rays done in March 2009. There are no VA records in the claims folder or Virtual VA for the period from June 2006 to October 2011, which would include the March 2009 period when the Veteran was x-rayed. The fact of the Veteran having been ordered to have x-rays in March 2009 would likely indicate he was seen for his right shoulder at that time. As a VA record, it would be relevant to the current appeal and required to be associated with the claims folder or included in Virtual VA. See Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, any outstanding VA records for the period from June 2006 to the current time must be obtained and either associated with the claims folder or included in Virtual VA. The VA examiner provided an opinion; however, the examiner limited his assessment to whether the Veteran pulling on a rope in service aggravated the preexisting disability. The examiner did not fully address the Veteran's assertions to include injury of his right shoulder in boot camp. The examiner also did not state whether the STRs reflected treatment in service as alleged by the Veteran. A new examination is required. Finally, the Veteran submitted a statement that was dated in November 2011. The statement included a copy of a letter from the Social Security Administration (SSA), dated in May 2006, that provided information in regard to the Veteran's monthly SSA benefit. There is no further statement from the Veteran that the SSA benefits are related to disability payments or, if they are, his right shoulder is considered in the disability award. The statement was received at the RO in Boston in November 2011 and forwarded to the AMC. The AMC date stamped the letter as received in March 2012. The July 2012 supplemental statement of the case (SSOC) did not acknowledge receipt of the above evidence. The letter is not listed in the evidence considered and there is no discussion of the notice of SSA benefits. The Board notes that the mere submission of the letter from SSA does not necessarily require additional development. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). As noted by the Federal Circuit, VA's duty to assist does require obtaining relevant records that may help a claimant substantiate a claim. Id. at 1321. Given other evidence of record, if the letter does represent disability payments, they could well be unrelated to the Veteran's right shoulder. However, the current evidence of record is not sufficient to make that determination. Moreover, the AMC did not address this evidence in the first instance. On remand, the Veteran should be asked to identify if he is in receipt of SSA disability benefits and if his right shoulder is considered in any SSA disability determination. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to his claim. The AMC/RO should attempt to obtain and associate with the claims folder any medical records identified by the Veteran that are not already of record. Even if the Veteran does not respond, the RO should ensure that VA records from June 2006 to the present have either been associated with the claims folder or included in Virtual VA. 2. The Veteran should be contacted in regard to his submission of the letter from SSA. He should be asked to identify whether he is in receipt of SSA disability benefits and if his right shoulder is included in the disability determination. If he is in receipt of disability benefits, that includes his right shoulder, the SSA should be contacted for a copy of the administrative decision awarding the benefits and the medical evidence relied on in making the decision. 3. Only upon completion of the above development, the AMC/RO should afford the Veteran an examination to assess his claim for service connection for his right shoulder disability. The claims folder must be reviewed by the examiner as part of the overall examination. All indicated studies, tests and evaluations, if any, should be performed as deemed necessary by the examiner and the results included in the examination report. The examiner is advised that the evidence of record establishes that the Veteran had a right rotator cuff repair prior to service. This was reported by the Veteran at the time of his enlistment examination in December 1979 and the surgical scar noted on physical examination at that time. Thus, a preexisting disability was noted on his entry to service. The Veteran is seeking service connection for his right shoulder disability based on a theory that the disability was aggravated during his period of military service. In that regard, he has told healthcare providers that he injured it in boot camp without providing any details. He submitted a statement in January 2012 wherein he provided more specifics regarding his contentions of aggravation during service. In that statement the Veteran related his assertion of hurting his right shoulder during boot camp. He also related how his duties on his ship involving heavy lifting, pulling and pushing heavy objects caused him pain. He further asserted he sought treatment in service. The examiner is requested to provide an opinion as to whether the right shoulder, status post rotator cuff repair, noted upon entry into military service was aggravated (permanently worsened beyond natural progress) during the Veteran's service. A thorough rationale must be provided for all opinions expressed. If the examiner is unable to provide the requested opinion without resorting to mere speculation, a supporting rationale must be provided concerning why the opinion cannot be given. 4. After the requested medical opinion evidence is obtained, the report should be reviewed to ensure it is in compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After undertaking any other development deemed appropriate the AMC/RO should re-adjudicate the issue on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the AMC/RO. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the AMC/RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ MICHAEL MARTIN 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).