Citation Nr: 1322503 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 09-16 491 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran served on active duty from July 1998 to July 2001. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in St. Louis, Missouri. In September 2012, the Board, in pertinent part, denied entitlement to service connection for a left shoulder disorder. The appellant appealed to the United States Court of Appeals for Veterans Claims. In February 2013, the Court granted a joint motion for remand. REMAND The parties to the joint motion for remand agreed the opinion provided by a January 2011 VA examiner was not supported by an adequate rationale. Furthermore, the parties agreed that the supporting rationale provided by the examiner gave no explanation regarding whether the Veteran's reported "overuse" of the left shoulder as a result of his service-connected right shoulder disability caused or aggravated appellant's left shoulder disability. Hence, the parties agreed that the Board should seek clarification from the same examiner, and such clarification should specifically address, with support by an adequate rationale, whether Appellant 's diagnosed left shoulder disability was caused or is aggravated by the service-connected right shoulder disability. The parties agreed that if the VA examiner who provided the January 2011 examination is unavailable, then a new VA examination should be obtained. Accordingly, this case is REMANDED for the following action: 1. The RO must contact the Veteran and request that he identify all VA and private medical records dating since December 2011 which pertain to treatment or diagnosis of a left shoulder disorder. The Board is particularly interested in securing any medical records which might link a current left shoulder disorder to service or to a service connected disorder. Thereafter, the RO must take appropriate action to secure all identified records. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, the RO should provide the examiner who conducted the January 2011 VA examination the claims files, as well as access to Virtual VA and a copy of this remand. The January 2011 examiner must then review all the evidence of record and specifically address, with supportive adequate rationale, whether it is at least as likely as not that the Appellant 's diagnosed left shoulder disability was caused or is aggravated by the service-connected right shoulder disability. In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved. If it is not possible to provide the requested opinion without resort to speculation, the examiner must state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc. If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 3. If the January 2011 examiner is not available the Veteran must be scheduled for a new VA examination to be conducted by an orthopedic physician who, following examination and review of the claims folder and Virtual VA, address with supportive adequate rationale, whether it is at least as likely as not that the Appellant 's diagnosed left shoulder disability was caused or is aggravated by the service-connected right shoulder disability. In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved. If it is not possible to provide the requested opinion without resort to speculation, the examiner must state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc. If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 4. The RO is to advise the Veteran that it is his responsibility to report for any ordered VA examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any ordered examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Thereafter, the RO must readjudicate the claim. If the claim is denied, a supplemental statement of the case must be issued, and the appellant offered an opportunity to respond. 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). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals