Citation Nr: 1318670 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 99-21 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a left shoulder and/or clavicle disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to January 1978 and from June 1979 to June 1983. This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). In an April 2012 Order, the Court endorsed an April 2012 Joint Motion for Remand; vacated the portion of a July 2011 Board decision that, in pertinent part, denied entitlement to service connection for residuals of an injury to the left clavicle; and remanded the matter for compliance with the instructions in the Joint Motion. The issue initially arose from a September 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia). In March 2001, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In December 2001 and February 2009, the Board remanded the matter for additional development prior to the July 2011 decision denying the Veteran's claim. The April 2012 Order and Joint Motion dismissed the issue of the rating assigned for service-connected residuals of a laceration wound to the right knee joint and there is no need for the Board to discuss it further. In the January 2013 Remand order, the Board found that the medical evidence and the Veteran's statements referring to shoulder injury on the right side raised the issue of entitlement to service connection for a right shoulder disorder. Since that time, the April 2013 brief submitted by the Veteran's representative also raises three additional issues: entitlement to service connection for an acquired mental disorder, including depression, and entitlement to service connection for gastroesophageal reflux disease (GERD) and entitlement to service connection for hypertension, both alleged to be secondary to the side effects of the non-steroidal anti-inflammatory drugs (NSAIDS) used to treat his service-connected orthopedic disorders. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ) and the Board does not have jurisdiction over them. They are referred to the AOJ for appropriate action. This 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 As noted above, in February 2013, the Veteran was provided with an examination with a VA physician's assistant. Unfortunately, the examiner premised the medical opinion provided on an inaccurate medical history. West v. Brown, 7 Vet. App. 70, 77-78 (1994); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that medical opinions premised on inaccurate facts are entitled to no probative weight). The April 2012 Joint Motion specifically referred to a May 1988 complaint of left scapular and shoulder pain that the December 2010 medical opinion failed to address, and the February 2013 medical opinion is similarly premised on the examiner's finding of "first documented noted shoulder pain in private records in 1990." The examiner's review of the medical history also omits the May 1988 complaint and skips chronologically from June 1980 service records showing a complaint of left shoulder pain to an April 1990 private medical record showing a complaint of bilateral shoulder pain. Therefore, as this opinion is premised on inaccurate facts, it is inadequate. West, 7 Vet. App. at 77-78 (1994); Reonal, 5 Vet. App. at 461 (1993); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Veteran's representative submitted a brief in April 2013 containing references to medical treatise evidence supposedly weighing against the examiner's reliance on the Veteran's negative x-ray reports in service. This evidence on the inability of x-rays to document soft tissue and other injuries should also be addressed by the examiner on remand. The representative also alleged that the VA physician's assistant who conducted in the February 2013 VA examination has not been a licensed practitioner in the state of Georgia since 2005. He attached an NPI registry entry and license number, as well as the license data from the Georgia Composite Medical Board which appears to indicate that the examiner's license status is "lapsed" and that the license expired in December 31, 2004. As this constitutes a challenge to the competency of VA's medical expert, VA must put forth evidence and argument affirmatively establishing the competency of the examiner or, if this cannot be accomplished, provide the Veteran with an adequate examination with a different VA examiner. Cf. Rizzo v. Shinseki, 580 F.3d 1288, 1291 (2009) (holding that absent a challenge to the expertise of a VA expert, there is no requirement for VA to present affirmative evidence of a physician's qualifications in every case as a precondition for the Board's reliance on that opinion). Therefore, on remand, the RO/AMC should determine whether the physician's assistant was authorized to perform the February 2013 VA examination, including investigation into whether she was working under a supervising physician at the time of the February 2013 examination. If so, associate all supporting documentation in the claims folder or electronic records file. If the examiner was authorized to perform the February 2013 VA examination, the AMC should obtain a supplemental medical opinion from the February 2013 examiner on the etiology of the Veteran's left shoulder and/or clavicle disorder that is premised on an accurate account of the Veteran's relevant medical history. Specifically, the examiner must consider the Veteran's complaint of left shoulder and scapular pain in May 1988. The examiner should also address the argument contesting the reliability of the examiner's reliance on the negative x-rays in service raised by the Veteran's representative, as well as the supporting medical treatise evidence referenced by the representative in the April 2013 brief. If it is determined that the examiner was not authorized to perform the February 2013 VA examination, schedule the Veteran for a new VA examination with a different VA examiner and obtain all requested opinions on the etiology of any diagnosed left shoulder and/or clavicle disorder. Lastly, appropriate efforts should be made to obtain any additional outstanding VA treatment records for any left shoulder or clavicle issues. These records should be associated with the claims folder or electronic records file. 38 U.S.C.A. § 5103A(b)(3), (c)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(2), (3). Accordingly, the case is REMANDED for the following action: 1. Obtain any recent outstanding VA treatment records pertaining to a left shoulder and/or clavicle disorder from the VA Medical Center in Augusta, Georgia, and the VA Medical Center in Dublin, Georgia. All information which is not duplicative of evidence already received should be associated with the claims file or the Veteran's electronic claims folder. 2. Determine whether the VA physician's assistant who performed the February 2013 VA examination was authorized to do so, including whether she was working under a supervising physician at the time of the February 2013 examination. If so, associate all supporting documentation in the claims folder or electronic records file. 3. If the RO/AMC the VA examiner's authority to conduct the examination is established, request an addendum to the February 2013 VA examination report from the same examiner, if available. If the same examiner is not available, a different examiner should be asked to review the claims folder and provide the opinions requested below. Please note that if the RO/AMC cannot establish this authority and the competency of the February 2013 VA examiner is called into question, the Veteran must be scheduled for a new VA examination with a different VA examination as the previous examination report may be considered inadequate for rating purposes (see remand directive 4, below). Review the Veteran's medical history documented in the examination interview and claims folder, including lay statements of records, the May 1988 complaint of left shoulder pain, and the representative's argument that "[a] normal x-ray does not rule out early arthritis," and the supporting evidence referred to in the April 2013 brief. Then, determine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left shoulder and/or clavicle disorder had its clinical onset during active service or is related to any in-service disease, event, or injury, including the following documented incidents: (i) September 1974 shoulder injury, (ii) July 1975 shoulder injury, (iii) June 1975 treatment for left shoulder pain, (iv) April 1980 motor vehicle accident, and/or (v) June 1980 motor vehicle accident. It is critical that the examiner rely on an inaccurate medical history, including the May 1988 complaint of left shoulder pain, in providing the requested opinion. If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue, or because of some other reason. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached that clearly states the conclusions, identifies the supporting data for each conclusion, and provides a reasoned medical explanation connecting the supporting data to each conclusion. 4. If the RO/AMC the VA examiner's authority to conduct the examination cannot be established, schedule the Veteran for a new VA examination with a different appropriate examiner. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests, including x-rays, should be accomplished. The examiner should provide the following requested information: (a) Identify all left clavicle and shoulder diagnoses that are substantiated by the medical evidence of record. In determining whether any diagnosis is warranted, the examiner should explicitly address all diagnoses or assessments currently listed in the record. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left shoulder or clavicle disorder had its clinical onset during active service or is related to any in-service disease, event, or injury, including the following documented incidents: (i) September 1974 shoulder injury, (ii) July 1975 shoulder injury, (iii) June 1975 treatment for left shoulder pain, (iv) April 1980 motor vehicle accident, and/or (v) June 1980 motor vehicle accident. (c) Determine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left shoulder or clavicle disorder was proximately caused by the following service-connected disabilities: (i) degenerative disc disease of the cervical spine, (ii) degenerative joint and disc disease of the lumbar spine, and/or (iii) residuals of a left wrist dislocation with carpal tunnel syndrome. (d) Determine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left shoulder or clavicle disorder was aggravated by (chronically worsened) the following service-connected disabilities: (i) degenerative disc disease of the cervical spine, (ii) degenerative joint and disc disease of the lumbar spine, and/or (iii) residuals of a left wrist dislocation with carpal tunnel syndrome. If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue, or because of some other reason. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached that clearly states the conclusions, identifies the supporting data for each conclusion, and provides a reasoned medical explanation connecting the supporting data to each conclusion. 5. Review the supplemental medical opinion or examination report obtained to ensure that the corresponding remand directives have been accomplished, and return the case to the VA examiner if all questions posed are not answered. 6. Readjudicate the Veteran's claim for service connection for a left shoulder and/or clavicle disorder. If the full benefit sought on appeal is not granted, provide the Veteran and his representative with an SSOC and allow an appropriate time for a response. 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). _________________________________________________ S. L. Kennedy 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).