Citation Nr: 1321019 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 04-44 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a left shoulder disability, to include residuals of an injury to the left acromioclavicular joint. 2. Entitlement to service connection for a cervical spine disability, including degenerative disc and joint disease. 3. Entitlement to service connection for shingles (herpes zoster), to include as secondary to service-connected low back disability and/or service-connected sciatic neuropathy of the right lower extremity. ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran had active military service from July 1979 to August 1999. This case is before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Oakland, California. These issues were remanded by the Board in March 2009. At that time, the Board determined that new and material evidence had been presented to reopen the Veteran's claim of entitlement to service connection for a left shoulder disability, to include residuals of an injury to the left acromioclavicular joint. In addition, the Board remanded the underlying claim for service connection for a left shoulder disability, and also remanded the Veteran's claims for service connection for a cervical spine disability, including degenerative disc and joint disease, and shingles (herpes zoster), to include as secondary to service-connected low back disability and/or service-connected sciatic neuropathy of the right lower extremity. This case was remanded by the Board again in October 2010. In October 2012 this case was again before the Board, at which time it was again remanded, primarily to attempt, again, to recreate the Veteran's claims file as following the Board's October 2010 remand, the claims file was lost. 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 In October 2010 the claims for service connection of a left shoulder disability, to include residuals of an injury to the left acromioclavicular joint and for a cervical spine disability, including degenerative disc and joint disease, were remanded to obtain an addendum to an April 2010 VA examination and opinion. The remand specifically directed that the claims file was to be returned to Dr. F.H., the examiner that conducted the April 2010 examination, for an addendum opinion as the April 2010 opinion was not responsive to the Board's prior remand directives, particularly on the etiology of the claimed disabilities with respect to service origin. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders"). Of record is an August 2012 medical opinion written by J.W. M., M.D. A review of the medical opinion discloses no indication that Dr. F.H. was unavailable to complete the addendum. Rather, the Appeals Management Center (AMC) referred the claims file to an in-house physician working at the AMC, as opposed to returning it to the examiner that conducted the April 2010 examination. The August 2012 AMC physician entered negative etiological opinions. The issues of entitlement to service connection of a left shoulder disability, to include residuals of an injury to the left acromioclavicular joint, and for a cervical spine disability, including degenerative disc and joint disease, must again be remanded. The AMC failed to comply with the Board's remand directives, which required that the addendum opinion be entered by the April 2010 VA examiner. Stegall, supra. Also, the Board notes that a review of the rebuilt claims files discloses a January 2011 personal statement from the Veteran pertaining to his claim for service connection of shingles. In the statement the Veteran related, inter alia, that he had apparently been treated "Air Force medical clinic" for his shingles. A review of the claims files discloses no such records or any attempt to obtain them. Upon remand, the AMC/RO should attempt to obtain these records if the Veteran provides sufficient information to make such an attempt. 38 C.F.R. § 3.159(c)(2)(i). When obtaining records in Federal custody, VA must make as many requests as are necessary to obtain relevant records, until VA concludes that further efforts to obtain these records are futile. 38 C.F.R. § 3.159(c)(2). Lastly, although it is arguable that the Veteran has received notice of how to substantiate his claims for service connection, including for shingles on a secondary basis, the record is incomplete to make such a determination. Upon remand, the Veteran should be provided such notice. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA notice that notifies him of the information and evidence not of record that is necessary to substantiate his claims for service-connection, including for service connection on a secondary basis. This notice must also inform the Veteran of which information and evidence, if any, that he is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on his behalf. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. 2. Send the Veteran a letter asking him to provide information regarding his reported treatment at an "Air Force medical clinic" for shingles. If the Veteran responds with adequate information to attempt to locate any such records, attempt to obtain them. Perform any and all follow-up as necessary, and document negative results. 3. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, return the claims file to Dr. F.H., the examiner that conducted the April 2010 VA examination, and request that he provide an addendum opinion. In the addendum opinion, Dr. H. must specifically answer the following questions: (a) is it at least as likely as not (50 percent or greater probability) that the Veteran's tendonitis of the left shoulder, diagnosed in April 2004, began during service or is otherwise linked to any incident of service, to include an x-ray showing a very mild widening of the left AC joint? (b) is it at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed degenerative disc disease of the cervical spine began during service or is otherwise linked to any incident of service, to include the in-service diagnosis of facet dysfunction of the cervical spine? Dr. H. is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. Dr. H. is requested to provide a rationale for any opinion provided. If he is unable to answer the aforementioned questions without resort to speculation, he should so indicate. If the Dr. F.H. is not available, documentation to that effect should be noted in the claims folder, and the claims file should be provided to and reviewed in its entirety by another VA examiner independent of the AMC with sufficient expertise to provide the required opinion with supporting rationale. The Veteran should be scheduled for another VA examination only if deemed necessary by the examiner providing the opinion. 4. Then, and after conducting any additional development deemed necessary, to include obtaining a VA examination on the issue of service connection for shingles, to include on a secondary basis, the issues on appeal should be readjudicated in light of all pertinent evidence and legal authority. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be furnished with a Supplemental Statement of the Case and afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. 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). _________________________________________________ MICHAEL A. PAPPAS 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).