Citation Nr: 1323496 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-30 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right shoulder disorder, to include as secondary to a left shoulder disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from June 1948 to November 1949, and from December 1950 to July 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office located in St. Louis, Missouri (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In July 2008, the Veteran submitted claims of entitlement to service connection for a left shoulder disorder, and for a right shoulder disorder, to include as secondary to a left shoulder disorder. The Veteran asserted that he incurred these disorders as a result of an inservice motor vehicle accident, sometime in 1951. He also asserted that his right shoulder disorder was incurred due to "overcompensation" as a result of the left shoulder disorder. After these claims were denied in a February 2009 rating decision, the Veteran perfected an appeal. Both issues were remanded by the Board in August 2012, after which a rating decision was issued in April 2013 granting service connection for left shoulder degenerative arthritis. The only issue remaining before the Board is that of entitlement to service connection for a right shoulder disorder, including as secondary to the now service-connected left shoulder degenerative arthritis. In August 2010, the Board remanded the Veteran's claims in order to afford him a VA examination to ascertain the presence of any shoulder disorder and for an opinion as to etiology. The examiner was to provide an opinion as to whether any right shoulder disorder was due to or aggravated by a left shoulder disorder, to include, if any right shoulder disorder was deemed not related to active service, "whether any found right shoulder disorder is due or is aggravated by his left shoulder disorder, to include as due to 'overcompensation.'" In September 2010, the Veteran underwent a VA examination. A radiological examination revealed a chronic rotator cuff injury and mild osteoarthritis in the Veteran's right shoulder. After a physical examination, the diagnosis was degenerative arthritis of the right shoulder. The examiner then opined that because there was no record of shoulder injury, "it is not at least as likely as not that either left or right shoulder injury occurred while on active duty." There was no opinion in this report as to whether the confirmed right shoulder degenerative arthritis was due to or aggravated by the left shoulder degenerative arthritis. In July 2011, the Board found that the September 2010 VA examination was inadequate for purposes of determining service connection. In September 2011, the AMC obtained a supplemental opinion from the VA examiner that conducted the September 2010 examination. The examiner indicated that the Veteran claims file was reviewed. Specifically, the examiner opined that the Veteran's shoulder disorders were "less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." In support of this conclusion, the examiner reasoned that there was, "[n]o medical documentation of injury occurring in the service. It is less likely as not that an injury occurred to either shoulder while in the service. No evidence of motor vehical [sic] accident." There was again no opinion as to whether the right shoulder degenerative arthritis was due to or aggravated by the left shoulder disability. The Board deemed this September 2011 supplemental opinion to be inadequate for the purpose of determining service connection and ordered that the AMC attempt to obtain another supplemental opinion from the September 2010 VA examiner as to the etiology of the Veteran's shoulder disorders. The Board specifically ordered that "[i]f the examiner finds that a right or left shoulder disorder is relate to the Veteran's military service...the examiner must then address whether the other shoulder disorder is due or is aggravated by the service-related shoulder disorder, to include as due to 'overcompensation.'" In September 2012, the VA examiner who provided the September 2010 VA examination, as well as the September 2011 supplemental opinion, also provided the most recent supplemental opinion. This time, the examiner found that the left shoulder disorder was caused by injury during active service, but noted that the Veteran "does not claim his right shoulder as service related" and that the "right shoulder condition was less likely than not incurred in or caused by an inservice event." Again, the VA examiner failed to render an opinion as to whether the right shoulder disorder was due to or aggravated by the left shoulder disorder. In February 2013, the AMC entered a deferred rating decision into the record, confirming its awareness that the September 2012 VA examiner's opinion was inadequate as to an opinion on secondary service connection. The deferred rating decision specifically instructs that a medical opinion is needed "on whether or not the [V]eteran's service connected left shoulder caused or aggravated the [V]eteran's right shoulder condition." The AMC, however, did not return the claims file to the examiner who provided the September 2010 VA examination for this opinion, as was required by the Board's remand. The AMC also did not deem that VA examiner unavailable and obtain a new VA examination for the Veteran, which was the only other option provided by the Board's remand instructions. Rather, the AMC obtained a medical opinion from a podiatrist in Washington, D.C., who was neither the September 2010 examiner, nor a new VA examiner. There is no evidence that this podiatrist is qualified in matters related to the shoulder. Moreover, there is no evidence that this podiatrist is associated with the VA healthcare system. However, the medical opinion report was provided on AMC letterhead and in the May 2013 supplemental statement of the case, this podiatrist was noted to be the "Appeals Management Center Medical Officer." Furthermore, the opinion provided was inadequate in content. The AMC podiatrist noted, "The following evidence was extracted from this review of the current clinical file and claims folder:" and listed only the Veteran's date of birth. The podiatrist went on to opine that the right shoulder disability was "less likely than not" proximately due to the left shoulder condition. The basis for this opinion included that there was "no objective medical evidence in the active duty records or over the presumptive period following separation of a diagnosis, treatment or injury of the right shoulder." This statement in relation to a secondary service connection claim is irrelevant. Also, the podiatrist noted that 2010 radiographs showed "right shoulder rotator cuff injury" and then went on to state that "these findings were consistent with a normal and natural aging process." No explanation was provided as to how an "injury" is part of the "normal and natural aging process." Finally, the podiatrist stated, in what seemed to be a conclusion, "I am in full agreement with [the September 2010 VA examiner]. In the September 2012 C&P shoulder examination, the physician stated that the right shoulder condition was less likely than not incurred or caused by an in-service event.'" Again, this opinion in the realm of a secondary service connection claim is irrelevant. In summary, the Board finds that the AMC obtained a medical opinion from an "Appeals Management Center Medical Officer," who is a podiatrist with an unknown link to the VA healthcare system, who has never examined the Veteran, who is not shown to be a qualified medical examiner in matters related to the shoulders, and who provided a wholly inadequate report. It is also unclear to the Board how the AMC can be deemed to have been ensuring impartiality by obtaining an opinion from someone contracted directly by the AMC for this opinion. See Austin v. Brown, 6 Vet. App. 547 (1994) (finding that the process for developing additional medical evidence must "ensure impartiality," not be aimed at "support[ing] a predetermined outcome"); see also Kahana v. Shinseki, 24 Vet. App. 428, 436 (2011). Basic fair play requires that the evidence be procured in an impartial, unbiased, and neutral manner. The use of an "Appeals Management Center Medical Officer" cannot be sustained as fair, and the resultant opinion will not be used in the analysis of this claim. Austin, 6 Vet. App. at 552. Consequently, the Board finds that the September 2012 VA supplemental opinion is inadequate in that it failed to render an opinion as to whether the right shoulder degenerative arthritis was due to or aggravated by the service-connected left shoulder degenerative arthritis. The Board also finds that the "Appeals Management Center Medical Officer" (podiatrist) opinion is wholly inadequate and will not be used in the analysis of this claim. See 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). By again failing to ensure that the Veteran was afforded an adequate examination, the AMC did not substantially comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). AMC compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Id. As such, a remand for corrective action is required. Thus, in order to satisfy VA's duty to assist, the Board also finds that another remand is warranted in order to obtain an adequate opinion from a VA examiner. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). Finally, upon further review of the claims file, the Board recognizes that the August 2008 letter to the Veteran failed to notify him of the evidence necessary to establish his claim on a secondary basis. In that the only remaining claim is whether the Veteran's right shoulder degenerative arthritis is due to or aggravated by the service-connected left shoulder degenerative arthritis, the Veteran must be provided adequate notice as to secondary claims. For this reason also, remand is required. Accordingly, the case is remanded for the following action: 1. The AMC must provide the Veteran and his representative with the requisite statutory and regulatory notice of the information or evidence needed to establish service connection for the claim on appeal on a secondary basis. 2. The AMC must attempt to obtain another supplemental opinion from the September 2010 VA examiner. An addendum report by an "Appeals Management Center Medical Officer" podiatrist is not sufficient to comply with this remand directive. The claims file and all records on Virtual VA must be made available to the September 2010 VA examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Following a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must opine as to whether the Veteran's right shoulder degenerative arthritis is due to or is aggravated by the service-connected left shoulder degenerative arthritis, to include as due to "overcompensation." A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The examination report must be typed. 3. If the September 2010 VA examiner is unavailable to render the requested supplemental opinion, the Veteran must be afforded another VA examination in order to obtain an opinion as to the etiological relationship, if any, between his current left and right shoulder disorders. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following a review of the evidence of record, the clinical examination, and with consideration of the Veteran's statements, the examiner must state whether the right shoulder degenerative arthritis is due to or aggravated by the service-connected left shoulder degenerative arthritis, to include as due to "overcompensation." A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The examination report must be typed. 4. If the Veteran is afforded another VA examination, the AMC must notify the Veteran that it is his responsibility to report for the examination scheduled, and to cooperate in the development of the claim. 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 the scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to the last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 5. After the requested supplemental opinion has been obtained, or examination completed, the AMC must review the examination report to ensure that it is in complete compliance with the directives of this remand. An examination report must be returned to the examiner if it is deficient in any manner and the AMC must implement corrective procedures at once. 6. Thereafter, the AMC must ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claim. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 7. THE VETERAN'S APPEAL IS ADVANCED ON THE DOCKET. Accordingly, this claim must be afforded expeditious treatment. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).