Citation Nr: 1319679 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 05-35 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected lumbosacral strain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran had active service from June 1981 to July 1991. This matter comes before the Board of Veteran's Appeals (Board) on appeal from rating decision of March 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, inter alia, denied service connection for lumbosacral strain, a bilateral knee disability, and a right shoulder disability. In a May 2010 rating decision, the RO granted service connection for lumbosacral strain and assigned an initial rating of 10 percent, effective August 2003, which was increased to 40 percent effective June 2009. The grant of service connection for lumbosacral strain represents a full grant of the benefit sought, and the Veteran has not expressed disagreement with the assigned ratings. Accordingly, there remains no issue of fact or law to be determined, and this matter is no longer before the Board. The case was previously before the Board in June 2011, and was remanded to provide the Veteran an examination of her claimed disabilities, and complete notice of the evidence required to establish her service connection claims. The Case was again remanded by the Board in October 2012 so that a VA examination could be arranged. By rating decision dated in February 2013, the RO awarded service connection for internal derangement of each knee, rated 10 percent disabling on the right and noncompensable on the left. This represents a full grant of the benefit sought, and the Veteran has not expressed disagreement with the assigned ratings. Accordingly, there remains no issue of fact or law to be determined, and this matter is no longer before the Board. In an August 2012 statement to the Board, the Veteran's accredited representative asserted that the Veteran suffers from depression caused by her service-connected back disability, and gastroesophageal reflux disease (GERD) and migraines associated with depression. The representative also contended that the Veteran is entitled to a total rating based on individual unemployability due to service-connected disability (TDIU). The issues of entitlement to service connection for depression secondary to service-connected disability, entitlement to service connection for GERD and migraines secondary to service-connected disability, and entitlement to TDIU have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and the claims are referred to the AOJ for appropriate action. The issue of service connection for a right shoulder disability must be again 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 contends that her right shoulder disorder is related to service or to her service-connected lumbosacral disability. In the Board's October 2012 an examination to ascertain the nature and etiology of her right shoulder disorder was requested. In response to this request, the Veteran was examined in December 2012. The examiner rendered a negative opinion regarding whether it was at least as likely as not that the right shoulder disorder is related to service or to her service-connected low back disability. The rationale for the opinion was that the examination, including X-ray studies, did not show that the Veteran had a right shoulder condition. The examiner did not reconcile this finding with the March 2004 X-ray study showing mild narrowing of the acromioclavicular joint that was previously associated with the record. The Board notes that reconciling the March 2004 X-ray study with a later study that showed no right shoulder disorder was a primary reason for the October 2012 remand. As pointed out by the Veteran's representative, as no opinion was rendered, an additional examination is warranted. As such, the case must, once again, be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should arrange for the Veteran's claims folder to be reviewed by the VA examiner who completed the December 2012 VA evaluation for a supplemental opinion. The examiner should be requested to render an opinion regarding whether the Veteran's has a right shoulder disability that is at least as likely as not (probability 50 percent or more) related to service or caused or aggravated by the Veteran's service-connected lumbosacral disability. The examiner should provide complete rationale for all conclusions reached. If the VA examiner is not available, the Veteran's claims folder should be evaluated by another VA examiner so that the requested opinion may be obtained. 2. Thereafter, the RO/AMC should readjudicate the issue on appeal. If the determination remains unfavorable to the appellant, she and her representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim, and the appellant should thereafter be given an opportunity to respond to the SSOC prior to returning the case 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ Michael J. Skaltsounis 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).