Citation Nr: 1316925 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 11-30 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for arthritis of the lumbar spine. 2. Entitlement to service connection for a left shoulder disorder, to include arthritis of the left shoulder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty from November 1955 to February 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge at a travel board hearing in April 2013. A transcript of this proceeding has been associated with the claims file. The Veteran originally filed a claim of entitlement to service connection for unspecified arthritis. However, at the April 2013 hearing, the Veteran clarified that he was seeking service connection for arthritis of the lumbar spine and left shoulder. Therefore, the issues have been recharacterized, as reflected on the title page. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 issue of entitlement to a left shoulder disorder will be addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran is already service connected for arthritis of the lumbar spine. CONCLUSION OF LAW There is no case or controversy involving the claim of service connection for arthritis of the lumbar spine; the appeal is moot. 38 U.S.C.A. § 7105(d)(5) (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO did provide the appellant with notice in March 2010, prior to the initial decision on the claim in May 2010. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the notice letter about the information and evidence that is necessary to substantiate his claim for service connection and of the division of responsibility in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. He has not identified any other outstanding records that are pertinent to his claim being decided herein. The Veteran was also provided an opportunity to testify at a hearing before the undersigned Veterans Law Judge. During that hearing, the undersigned Veterans Law Judge clarified the issues on appeal. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that VA fully complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Law and Analysis The Veteran's service treatment records show that he injured his back during a motor vehicle accident in service. In an October 1970 rating decision, the RO granted service connection for residuals of a compression fracture of the lumbar spine, L1 and L2, and assigned a 10 percent evaluation effective from March 31, 1970. In January 2010, the Veteran filed a claim for an increased rating for his "back condition" and a claim of service connection for "arthritis secondary to back injury." The Veteran was afforded a VA examination in March 2010 at which time the examiner noted degenerative arthritis and dextroscoliosis on an x-ray report. The examiner diagnosed him with severe degenerative joint disease as a residual of the compression fracture of the lumbar spine. In a May 2010 rating decision, the RO recharacterized the service-connected back disability as degenerative joint disease of the lumbar spine with dextroscoliosis and continued the 10 percent rating. The same rating decision denied the Veteran's claim of service connection for unspecified arthritis. In particular, the RO determined that there was no evidence showing arthritis during service or within the one year presumptive period post service. In February 2011, the Veteran filed a notice of disagreement "on arthritis/because of my back condition." In March 2011, the RO sent the Veteran a letter in which it requested that he specify the joint affected by the arthritis. The Veteran subsequently submitted a statement indicating that he was taking pain medicine and anti-inflammatory medication issued by the VA. No joint was specified. The Veteran was afforded another VA examination in May 2011 to assess the severity of his degenerative joint disease of the lumbar spine. In a June 2011 rating decision, the RO increased the Veteran's rating for degenerative joint disease of the lumbar spine with dextroscoliosis to 20 percent effective from March 17, 2011. No appeal was filed pertaining to this increased rating. At the March 2013 Board hearing, the Veteran testified that the arthritis is in his spine and left shoulder. He specifically stated that he was unaware of any additional joints affected by arthritis. The Veteran further specified that the arthritis in his spine was only in the lumbar spine where his in-service injury occurred. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. The Veteran is already service-connected for degenerative joint disease of the lumbar spine as a result of the back injury sustained in service. The term "arthritis" encompasses degenerative joint disease. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (30TH Ed. 2003) at 149. The March 2010 VA examination report and the May 2010 rating decision shows that the Veteran's service-connected disorder was recharacterized to encompass the arthritis/degenerative joint disease of his lumbar spine. Thus, the Veteran is already service-connected for the arthritis of the lumbar spine, and there remains no case or controversy as to whether the Veteran is entitled to the benefit sought. Accordingly, the appeal with respect to this issue is dismissed. 38 U.S.C.A. § 7105(d)(5) (West 2002); See also Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). To the extent that the Veteran's claim for service connection for arthritis of the spine could be construed as a claim for an increased rating for his already service-connected degenerative joint disease of the lumbar spine with dextroscoliosis, the Board notes that the RO has already adjudicated the increased rating claim in a June 2011 rating decision. He did not appeal that decision. Therefore, the issue of entitlement to an increased evaluation is not currently before the Board. ORDER The appeal for the issue of entitlement to service connection for arthritis of the lumbar spine is dismissed. REMAND As discussed above, the law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In this case, the Veteran was afforded a VA examination in August 2011 in connection with his claim for service connection for a left shoulder. A medical opinion was subsequently provided by a different physician in October 2011. The October 2011 VA examiner opined that the Veteran's degenerative joint disease of the left shoulder was less likely than not incurred in or caused by the claimed in-service injury. Specifically, the examiner concluded: "After a review of the medical records, the Veteran's left shoulder condition is less likely as not permanently aggravated or a result of any event and/or condition that occurred and/or expressed in-service and/or within one year of discharge including the May 1957 MVA with right clavicle fracture and L1/L2 compression fracture and/or the August 1957 left shoulder pain (currently asymptomatic)and/or the compression fracture L1/L2 and is at least as likely as not a result of post service employment in pest control requiring crawling, climbing, get under houses as reported in the [June 1998 VA examination], and/or the normal process of aging and was not caused or worsened by an already service connected disability. The natural progression was not altered or worsened by any event and/or condition that occurred and/or expressed during active service. The Veteran, on the [August 2010 VA examination], reported the left shoulder was worse over 3-4 years. A review of Up To Date On Line lists glenoid bone loss, not arthritis, as a complication of shoulder dislocation." During the March 2013 hearing, the Veteran's representative challenged the adequacy of that medical opinion. In particular, he asserted that he examiner was not a specialist and did not provide a rationale. The Board notes that October 2011 VA medical opinion was rendered by a physician and that ordinarily there is no requirement that VA medical opinions be rendered by specialists. Indeed, in Cox v. Nicholson, 20 Vet. App. 563 (2007), the Court held that it has never required that medical examinations under section 5103A only be conducted by physicians. As provided by 38 C.F.R. § 3.159(a)(1), "competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." Nevertheless, the Board does find that the rationale provided by the October 2011 VA examiner was not clear or well articulated. For example, the examiner discussed whether the disorder was permanently aggravated or worsened in service or caused or worsened by a service-connected disability, yet the issue in this case is whether the disorder was incurred in service. There has been no allegation of entitlement to service connection on an aggravation or secondary basis. Thus, it is unclear as to whether the examiner had a complete understanding of the facts and contentions involved. The Board notes that it is the factually accurate, fully articulate, sound reasoning for the conclusion that contributes probative value to a medical opinion. The Board must be able to conclude that the medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 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 to determine the nature and etiology of the any left shoulder that is present. 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 refer the Veteran's claims folder to a suitably qualified VA examiner for a medical 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 the Veteran's own assertions. The examiner should note that the Veteran was involved in a motor vehicle accident in May 1957. His service treatment records also document left shoulder pain in August 1957. It should also be noted that the Veteran is competent to attest to observable symptomatology and matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify all current left shoulder disorders. For each diagnosis identified, he or she should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service, including the motor vehicle accident and his symptomatology therein. (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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. The RO/AMC should then conduct any other development as may be indicated by a response received as a consequence of the action taken in the preceding paragraph. 3. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative 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 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs