Citation Nr: 1323165 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 07-30 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to May 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied the Veteran's claim for service connection for a left shoulder disability. The Veteran testified before the Board at a travel board hearing in April 2010. A transcript of this hearing has been associated with the claims file. The Board remanded this claim for additional development in October 2010. In a May 2012 decision, the Board denied the claim for service connection for a left shoulder disability. The Veteran appealed the May 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2012, pursuant to a November 2012 Joint Motion for Remand, the Court vacated the Board's decision and remanded the claim to the Board for further proceedings. 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 After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim of entitlement to service connection for a left shoulder disability. The Veteran contends that he injured his left shoulder in early 1973 during his period of active service when he slipped on a dock and caught himself from falling into the water with his left arm, causing him to overstretch his arm. Service treatment records are negative for any left shoulder injury or any complaints, treatment, or diagnoses of a left shoulder disability. However, the Veteran described recurrent bilateral shoulder pain at his January 2001 retirement examination. On VA examination in December 2010, the Veteran stated that his left shoulder condition began in early 1973 when he slipped on a dock and injured his left shoulder. He reported that he was told he that he had overextended his left shoulder and was treated with ibuprofen. After examining the Veteran, the examiner provided a diagnosis of degenerative joint disease and stated that it was less likely than not that the Veteran's left shoulder disorder was caused by the alleged 1973 injury and that it was his impression that the Veteran's left shoulder condition was significantly worsened in a 2004 work-related injury. The examiner explained that the Veteran had been evaluated multiple times for a right shoulder condition during service but that there were no medical records which described treatment for a left shoulder condition during service. He instead found that the Veteran's left shoulder condition was primarily attributable to his November 2004 injury. However, in rendering his opinion, the December 2010 VA examiner did not consider the Veteran's report of bilateral shoulder pain at his January 2001 retirement examination and discuss whether this was indicative of a left shoulder condition during service. Accordingly, the Board finds that the December 2010 VA examination is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Given the evidence outlined above, including the Veteran's report of bilateral shoulder pain on separation from service, the Veteran should now be afforded a new VA joints examination with a medical opinion clarifying whether the Veteran's left shoulder disability arose during service or is otherwise related to any incident of service, including consideration of the January 2001 report of bilateral shoulder pain. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In particular, the Board notes that in May 2013 correspondence, the Veteran indicated that he had outstanding private treatment records dated from 2008 to 2009 from Olympic Sports and Spine Rehabilitation. On remand, these records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for a left shoulder condition. In particular, the Veteran should be asked to sign the appropriate release for Olympic Sports and Spine Rehabilitation. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for a VA joints examination to obtain a medical opinion as to whether his current left shoulder disability is related to his period of service. The claims file must be provided to and be reviewed by the examiner. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current left shoulder disability arose during service or is otherwise related to any incident of service. In rendering the opinion, the examiner must discuss the Veteran's January 2001 retirement examination in which the Veteran reported having bilateral shoulder pain. The examiner should provide a rationale for the conclusions reached. If the examiner believes that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so. 3. After the development requested above has been completed, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ WAYNE M. BRAEUER 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).