Citation Nr: 1324054 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 08-37 989 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability as secondary to a left shoulder disability. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a cervical spine disability as secondary to a left shoulder disability. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disability as secondary to a left shoulder disability. REPRESENTATION Appellant (the Veteran) is represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran served on active duty from November 1989 to March 1990, and from August 1991 to December 1991, with subsequent National Guard service until 2005. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the RO in St. Petersburg, Florida. In July 2010, the Veteran presented testimony at a Board hearing chaired by the undersigned Veterans Law Judge who was seated at the RO. A transcript of the hearing is associated with the claims file. In May 2011, the Board reopened the claim of entitlement to service connection for a left shoulder disability and remanded the entire appeal for additional evidentiary development. The appeal has since been returned to the Board for further action. The Veteran submitted additional relevant evidence directly to the Board subsequent to the October 2012 supplemental statement of the case. She included a waiver of her right to have the additional evidence considered initially by the RO; accordingly, a remand for RO consideration is not necessary. In the Introduction to the Board's May 2011 decision, the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was found to have been raised by the record, but as of then unadjudicated by the RO. The Board noted that it did not have jurisdiction over the issue even under Rice v. Shinseki, 22 Vet. App. 447 (2009), as the rating for the Veteran's only service-connected disability (fibromyalgia) was not on appeal. To date, the RO has not taken action on or even acknowledged the Board's referral of the claim of entitlement to TDIU. The Board reiterates that it does not have jurisdiction over the matter, and the claim is again referred to the RO for appropriate action. The Board acknowledges the Veteran's concern, as set out in correspondence dated in October 2012, that she submitted a request for an increased rating for fibromyalgia and a request for a TDIU in March 2009, prior to the Board hearing, and that the Board should take jurisdiction over these issues. Unfortunately, a thorough review of the claims file reveals that the March 17, 2009 VA Form 21-4138 was not received prior to the Veteran's submission of the document in October 2012. This would, in part, explain the lack of RO action on these matters, notwithstanding the Board's referral of the TDIU issue in May 2011 based on other evidence reasonably raising the claim. [Also, since the Board remanded the case, it has been in the possession of the Appeals Management Center in Washington, D.C., so it is likely the RO in St. Petersburg has not had an opportunity to act on pending claims since it does not have the file.] In any event, the Board's jurisdiction over an issue does not derive from receipt of a claim whether formal or informal, whether received before or after a Board hearing. The Board's jurisdiction arises from an adverse RO decision on the issue that is properly appealed. See 38 C.F.R. §§ 20.101, 20.200 (2012). Here, there is no adverse RO decision on the claim of entitlement to TDIU or on the claim for an increased rating for fibromyalgia. Therefore, the Board has no jurisdiction over these matters. While the undersigned certainly understands the frustration the Veteran has experienced over the delays in VA's claims process, the rules as to the Board's jurisdiction are clear, and the RO needs to consider these claims in the first instance. Based on the VA Form 21-4138, received in October 2012, and dated March 17, 2009, a claim for an increased rating for fibromyalgia is also reasonably raised by the record and is also referred to the RO for appropriate action. In her October 2012 statement, the Veteran also discussed some of the medical problems she is having, perhaps as secondary to her service-connected fibromyalgia. Again, the Board does not have jurisdiction to address these claims since the RO has not yet acted on them. Therefore, claims for secondary service connection for irritable bowel syndrome, diverticulitis, a sleep disorder, depression, an immune system disorder, and headaches are also referred to the RO for appropriate action. The reopened claims of entitlement to service connection for a right shoulder disability, entitlement to service connection for a lumbar spine disability, and entitlement to service connection for a cervical spine disability are each addressed in the REMAND below and are therein REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran sustained a left shoulder injury in the line of duty during a period of inactive duty training in April 2001. 2. Resolving all reasonable doubt in the Veteran's favor, the current left shoulder impingement syndrome is etiologically related to service. 3. In an unappealed October 2006 rating decision, the RO denied service connection for a right shoulder disability, a cervical spine disability , and a lumbar spine disability. 4. The evidence associated with the claims file subsequent to the October 2006 rating decision relates to an unestablished fact necessary to substantiate the claims; it is neither cumulative nor redundant of evidence already of record; and it raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. A left shoulder disability was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for reopening the claim of entitlement to service connection for a right shoulder disability are met. 38 U.S.C.A. §§ 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012). 3. The criteria for reopening the claim of entitlement to service connection for a cervical spine disability are met. 38 U.S.C.A. §§ 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012). 4. The criteria for reopening the claim of entitlement to service connection for a lumbar spine disability are met. 38 U.S.C.A. §§ 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that service connection is warranted for a left shoulder disability as directly related to service. The Veteran does not contend that a left shoulder disability is related to any injury or disease incurred during her period of active duty service. Rather, she has contended throughout this claim and appeal that a left shoulder disability is related to an injury she sustained during a weekend drill in April 2001 during her service with the National Guard. The Board notes at the outset that service connection is already in effect for fibromyalgia on the basis of the Veteran's service in Southwest Asia during the Persian Gulf War. The Veteran's fibromyalgia diagnosis encompasses joint pain in the shoulders, as found by a December 2007 VA examiner. Nevertheless, the Veteran is entitled to a decision regarding other distinct diagnoses of the left shoulder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When all the evidence is assembled, VA is responsible for determining whether the evidence supports a claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In order to qualify for VA benefits, a claimant must have status as a veteran during the period of service at issue. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006) (status as a "veteran" is one of the five elements of a claim for service-connection benefits). One of the benefits administered by VA that is reserved specifically for veterans is disability compensation. To establish "veteran" status a claimant must have served on active duty, served on a period of active duty for training (ADT) and have become disabled due to an injury or disease incurred in the line of duty during that period; or have served on a period of inactive duty training (IDT) and have become disabled due to an injury incurred in the line of duty during such period. Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Accordingly, in order to establish entitlement to disability compensation benefits, the appellant must first establish "veteran" status for the period of National Guard service during which she was injured. While service on active duty alone is sufficient to meet the statutory definition of veteran, service on ADT or IDT, without more, will not suffice to give one "veteran" status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). For individuals who have achieved "veteran" status through a prior period of service and claim a disability incurred only during a later period of ADT or IDT, the presumption of soundness applies only when the individual has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In this case, there was no examination for the period in question, which was a weekend drill with the North Carolina National Guard, and the presumption of soundness does not apply. The Veteran initially contested the characterization of the 3-day weekend drill as IDT. In correspondence received in September 2012, the Veteran asserted that a DA Form 2173 Statement of Medical Examination and Duty Status has the IDT box incorrectly marked, and that the period was actually ADT. The Veteran later retracted this assertion in correspondence received in October 2012 and agreed that the period was IDT. The Board notes that the Form 2173 in question does not simply have a check-box indicating Inactive duty training, but also contains a hand-written statement that the injury was during IDT. Accordingly, the Board has characterized the period for purposes of this decision as IDT. Nevertheless, the distinction between ADT and IDT in this case results in no difference in outcome. The Veteran's National Guard records show that she injured her left shoulder while hanging/swinging from a bar during training exercises and was subsequently treated and found to have sustained a left shoulder strain and a Grade I AC injury, thought to be a possible tear. She testified at the hearing that the shoulder quickly swelled and looked to be dislocated. The Veteran has training as a Medic and her observation is considered competent evidence. An April 24, 2001 examination noted that she was on IDT from April 20, 2001 to April 22, 2001. The examiner found that the injury was in the line of duty and that an official line of duty investigation was not necessary. A June 1, 2001 certificate from the Deputy Chief of Staff for Personnel approved the line of duty status for the injury. Thus, while there is no presumption that the Veteran was in sound condition at entry into IDT on April 20, 2001, there is also no assertion on her part, or other suggestion in the record, that she had a preexisting disability. Having established an injury to the left shoulder in the line of duty during a period of IDT, the next question to be resolved is whether the line of duty injury resulted in a disability. In finding in the affirmative on this question, the Board finds it significant that the injury initiated ongoing treatment for the left shoulder which resulted in the diagnosis of a chronic disability within months of the injury. Following the initial treatment for the left shoulder injury, the Veteran received follow-up treatment at Fort Bragg on May 1, 2001 and was found to have a moderately-severe left shoulder strain. She was treated again at Fort Bragg on May 29, 2001, at which time the examiner noted that a possible rotator cuff tear should be ruled out. Physical therapy was recommended. While an MRI in June 2001 was interpreted as normal, a treatment note from July 2001 includes a diagnosis of an AC separation. The examiner noted that the Veteran should see an orthopedist and may need surgery. A note from a private orthopedist dated in August 2001 includes the opinion that the Veteran will need a surgical procedure on her AC joint to be able to return to civilian employment. An August 2001 Fort Bragg medical record reveals that the Veteran had been attending physical therapy and that her left shoulder pain was getting worse. An October 2001 orthopedics treatment report from Fort Bragg includes a rule-out diagnosis of coracoid impingement versus AC separation. It was noted that the Veteran was receiving anesthetic injections into the joint. A January 2002 physician's statement includes a diagnosis of left shoulder coracoid impingement. A February 2003 report reveals a diagnosis of left AC impingement. The Veteran was treated a few more times before her release from National Guard service in 2005. She filed her initial service connection claim in October 2005 and reported as the basis of her claim a left shoulder injury in April 2001. Physical profile assignments during this period also reflect ongoing symptoms and impairment. A temporary profile assignment for the left shoulder was given following the injury and was renewed several times. A permanent profile assignment of U-3 was given sometime after February 2004. The DA Form 3349 containing the permanent profile is undated; however, the form version date is February 2004, indicating that the form was completed sometime after that date and prior to separation from National Guard service in 2005. That form reflects that a medical evaluation board was recommended; however, there is no evidence that this was ever conducted. Regarding the physical profile, PULHES is a rating system widely employed by armed services physicians in examination reports for induction and separation. The "P" stands for "physical capacity or stamina"; the "U" for "upper extremities"; the "L" for "lower extremities"; the "H" for "hearing and ear"; the "E" for "eyes"; and the "S" for "psychiatric." See McIntosh v. Brown, 4 Vet. App. 553, 555 (1993). A rating of "1" in any of the six categories means that the individual's condition in that category should not result in any limitations in military assignments. Ratings from "2" to "4" indicate the existence of physical conditions that will result in progressively more severe restrictions on the assignments that the individual may be given. Id. VA outpatient records reveal that the Veteran sought treatment for left shoulder pain and decreased range of motion in November 2002 at the ER in Fayetteville. A November 2002 outpatient note indicates a history of shoulder impingement syndrome since April 2001. A July 2005 treatment report includes a diagnosis of left shoulder impingement sydrome involving the supraspinatus. In addition to physical therapy, the Veteran was treated with acupuncture and aquatic therapy, as well as medication for pain. Private records include a March 2007 MRI of the left shoulder, which was read as normal; however, a July 2007 MRI report found "[e]vident in retrospect," tiny subcortical cystic foci at the far anterior margin of the insertion of the rotator cuff, possibly from a previous injury or chronic irritation. An October 2007 evaluation from Dr. D.E.L. includes a diagnosis of neuralgic amyotrophy with scapular winging, and secondary shoulder impingement and tendonitis. Thus the evidence demonstrates ongoing treatment for the left shoulder since the April 2001 injury, with no apparent resolution of symptoms at any time. Moreover, the evidence also demonstrates a diagnosis of impingement syndrome which appears only a few months after the injury, and which carries forward to the period of the current claim. Several opinions have been obtained regarding whether a current left shoulder disability arose from the IDT injury. A VA examination in October 2006 noted X-ray findings for the left shoulder showing a narrowing of the left glenohumeral articulation indicating spinning of the articular cartilage. The examiner provided no diagnosis and found no etiology for the left shoulder complaints. A VA examination in February 2008 included a diagnosis of left shoulder degenerative joint disease and found that the diagnosis was unrelated to the 2001 injury. Pursuant to the Board's May 2011 remand, the RO obtained a VA examination in May 2011. The examiner diagnosed two current disabilities of the left shoulder. She diagnosed left shoulder impingement syndrome, which she opined was less likely than not related to the in-service left shoulder Grade I AC strain injury. She also opined that left shoulder mild subcortical cysts were not caused by the left shoulder impingement syndrome. Because the May 2011 examiner provided no rationale for the opinions, the RO requested that the same examiner review the claims file again and provide a rationale for the opinions previously expressed. In September 2012, the same VA physician reviewed the claims file and found that the April 2001 left shoulder strain and Grade I AC injury had resolved. According to the examiner, the strain was a transient, temporary condition caused by a pulled muscle or ligament. The examiner also opined that the current left shoulder impingement syndrome was less likely than not caused by or related to military service or to the in-service AC strain. The rationale was that the service treatment records are silent for impingement syndrome, which was not diagnosed until October 2007, "17 yrs post-service." She also noted that there is no clinical correlation between an AC strain and impingement syndrome, as impingement syndrome is caused by compression of structures around the shoulder joint." The examiner again opined that the mild subcortical cyst was not caused by or related to service or to either of the other diagnoses, but was incidental and acquired. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. As noted, the October 2006 VA examiner did not provide an opinion. While the February 2008 VA examiner provided a nominal opinion, the Board finds that the opinion is unpersuasive as the examiner provided no rationale. Moreover, the diagnosis of degenerative joint disease appears to be based entirely on the examiner's observation that an X-ray in October 2006 "may" have shown some degenerative joint disease. It is unclear whether the February 2008 examiner ever reviewed the X-ray report. In fact, the October 2006 X-ray report, as included in the October 2006 VA examination report, does not mention degenerative joint disease, and the October 2006 examiner, who ordered the X-ray and presumably did review it, did not diagnose degenerative joint disease. The Board also notes that, while the February 2008 examiner noted an injury to the left shoulder in 2001, she stated her understanding of the Veteran's service as having ended in March 1990. The Board is also not persuaded by the May 2011 and September 2012 opinions. As noted above, the 2011 opinion includes no rationale. Moreover, the rationale provided by the same VA examiner in the September 2012 opinion is premised on an incorrect understanding of the facts. While the examiner at one point in the September 2012 opinion acknowledged that the original injury to the left shoulder was in 2001, in her rationale, she appeared focused on the Veteran's active duty service, which ended in March 1990, as she reasoned that a 2007 diagnosis of impingement syndrome was 17 years after service. This not only indicates a misunderstanding of the Veteran's periods of service, but is inconsistent within the context of the opinion itself. The examiner also reasoned that the service records are silent for impingement syndrome. This fits with her apparent belief that the Veteran's service ended in March 1990; however, this is simply incorrect. The service treatment records include a diagnosis of impingement syndrome 6 months after the injury. The Board also notes that, in the September 2012 opinion, the VA examiner found that the initial diagnosis of impingement syndrome was in 2007. As already discussed, the service treatment records reveal that the initial diagnosis of coracoid impingement was given on a rule-out basis in October 2001, and was confirmed in January 2002. Regarding the subcortical cysts, the VA examiner's opinion that these were incidental and acquired begs the question. The July 2007 MRI, which identified these subcortical cysts of the rotator cuff, indicated that they were possibly from a previous injury or chronic irritation. The VA examiner's opinion that these were acquired is entirely consistent with their being related to a previous injury. The opinion that they are incidental is not explained. Based on what appears to be a fundamental misunderstanding of the chronology of events, and of the evidence providing a diagnosis of coracoid impingement 6 years earlier than believed by the VA examiner, and only 6 months after the IDT injury, the Board finds that, while a rationale was provided for the opinions, this rationale is not consistent with the record. The opinions are therefore inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008) ("it is what an examiner learns from the claims file for use in forming the expert opinion-and not just the reading of the file-that matters"). Accordingly, the Board attaches no probative weight to the May 2011 and September 2012 opinions. In sum, the Veteran's current diagnosis of left shoulder impingement syndrome is the same diagnosis she was given shortly after the IDT injury. The evidence establishes an unbroken history of complaint and treatment following the injury with no evidence of an intercurrent injury. When viewed in its entirety, and with resolution of all reasonable doubt in favor of the claim, the evidence demonstrates that the impingement syndrome currently diagnosed was not only noted in service, but was chronic in service, and has remained chronic and symptomatic since service. Therefore, the Board finds that the April 2001 IDT injury to the left shoulder resulted in a disability. As such, "veteran" status attaches to this period of service, and service connection for the left shoulder disability is warranted. Turning to the applications to reopen claims of entitlement to service connection for disabilities of the right shoulder, lumbar spine, and cervical spine, each claimed as secondary to the service-connected left shoulder disability, the Veteran's essential contention, as set forth in her hearing testimony, is that the claimed disabilities were caused by overcompensation in lifting, twisting, and turning necessitated by the impairment of her left shoulder. The Board points out that although the RO adjudicated these claims on the merits in the April 2008 rating decision, the Board must first examine whether the evidence warrants reopening the claims. This is significant to the Board because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board does not have jurisdiction to review the claim on a de novo basis in the absence of a finding that new and material evidence has been submitted). The RO initially denied the claims in an October 2006 rating decision. At the time of that decision, the medical evidence of record consisted of service treatment records for the Veteran's National Guard period of service, VA and private outpatient records, and a VA examination dated in October 2006. The service records showed no injury or disease regarding the right shoulder, lumbar spine, or cervical spine. The VA examination report did not address the secondary service connection claims. At the time of the October 2006 decision, service-connection was not in effect for a left shoulder disability and the claims were denied on a secondary basis for this reason. Moreover, at the time of the October 2006 decision, there was no evidence tending to link the Veteran's right shoulder disability, lumbar spine disability, or cervical spine disability to service or to a service-connected disability. Although notified of the RO's decision and of her right to appeal, the Veteran did not initiate an appeal of that decision (see 38 C.F.R. § 20.200 (2012)). In July 2007, the Veteran filed a VA Form 21-4138 asking the RO to reopen the previously denied claims. The Board finds that, although received within a year of the October 2006 decision, the July 2007 correspondence was not a notice of disagreement. No disagreement with the October 2006 rating decision was expressed, nor was any intent to appeal the decision. See 38 C.F.R. § 20.201 (while special wording is not required, the notice of disagreement must be in terms which can be reasonably construed as disagreement with the determination and a desire for appellate review). In this case, the Veteran specifically stated that she was submitting new and material evidence and wanted to reopen the claims. When a claimant uses terminology that is specifically defined under VA law such as reopen and new and material evidence, it is reasonable to presume that she understands the meaning of the terminology used. New evidence is defined as evidence not previously submitted to agency decision makers, and material evidence is defined as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last disallowance on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996), overruled on another basis by Hodge v. West 155 F.3d. 1356 (Fed. Cir. 1998). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Buie v. Shinseki, 24 Vet. App. 242 (2010), the United States Court of Appeals for Veterans Claims (CAVC) vacated and remanded an earlier effective date claim (not at issue in this case) because the Board did not discuss the application of 38 C.F.R. § 3.156(b) in its decision, but instead focused on the question of whether statements submitted within the appeal period following a rating decision satisfied 38 C.F.R. § 20.201 and were notices of disagreement. Buie, Vet. App. at 252. Essentially, the CAVC indicated that, because the statements were submitted within one year of the corresponding RO decision, the Board should have considered whether the statements included the submission of new and material evidence. Id. In this case, the evidence submitted within a year of the October 2006 decision is not new and material. The request to reopen the claims does not itself constitute new and material evidence, as no reason was provided other than that several documents submitted by the Veteran were believed by her to constitute new and material evidence. However, those documents were service treatment records, copies of which were already of record and considered in the October 2006 decision. Therefore, neither the documents submitted nor the claim itself constitutes new and material evidence. Moreover, as the service treatment records were duplicates, there is no basis for reconsideration of the claim on the basis of additional relevant official service department records pursuant to 38 C.F.R. § 3.156(c). The Veteran submitted MRIs of the cervical spine and left shoulder in August 2007, within a year of the October 2006 rating decision; however, evidence of cervical radiculopathy was already of record at the time of the October 2006 decision. As this evidence does not address the unestablished fact of a relationship between a cervical spine disability and service or a service-connected disability, but relates to an already-established fact that was not a basis for the prior denial, the evidence is not new and material. Since the October 2006 decision, additional evidence also includes an April 2008 examination report from B.B.H., M.D., which finds that it is very likely that shoulder and neck pain is due to a service-related injury. This opinion relates to the unestablished fact of a nexus between the claimed right shoulder and cervical spine disabilities and service and/or service-connected disability. It is neither cumulative nor redundant of evidence previously of record, and it raises a reasonable possibility of substantiating the claims. Regarding the lumbar spine, at the time of the October 2006 decision, the evidence did not establish a diagnosis of a lumbar spine disability. While an MRI in January 2005 showed some abnormal findings, the only diagnosis rendered was chronic low back pain without radiation. Similarly, a December 2005 MRI showed disc bulges, but no confirmed lumbar spine disability. Evidence received since the October 2006 includes a diagnosis of a lumbar spine disability. A December 2008 VA treatment record includes a diagnosis of probable lumbar disc disease with myelopathy. In Shade v. Shinseki, 24 Vet. App. 100 (2010), the CAVC held that 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where there was a lack of a current disability and nexus, the CAVC held that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Here, the evidence of a current lumbar spine disability combined with the establishment of service connection for the left shoulder disability on which the Veteran's claim of secondary service connection is based establishes two of the three elements necessary for service connection. In accordance with the holding in Shade, the Board finds that the December 2008 diagnosis is new and material evidence. Accordingly, the Board finds that new and material evidence has been received and the criteria for reopening the claims of entitlement to service connection for a right shoulder disability, for a lumbar spine disability, and for a cervical spine disability are met. The Board will address the reopened claims in the Remand below. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting service connection for left shoulder impingement syndrome, and reopening claims of entitlement to service connection for a right shoulder disability, a lumbar spine disability, and a cervical spine disability, these claims are substantiated to this extent, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). ORDER Service connection for left shoulder impingement syndrome is granted. Reopening of the claim of entitlement to service connection for a right shoulder disability is granted. Reopening of the claim of entitlement to service connection for a cervical spine disability is granted. Reopening of the claim of entitlement to service connection for a lumbar spine disability is granted. REMAND The Veteran has asserted that disabilities of the right shoulder, cervical spine and lumbar spine are proximately due to or a result of her left shoulder disability. The Board's action in the decision above has resulted in a grant of service connection for the left shoulder disability and a reopening of the remaining claims. In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service, the CAVC has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). While a February 2008 VA examination includes a nominal opinion regarding secondary service connection, finding against a relationship between the now service-connected left shoulder disability and the claimed right shoulder disability, cervical spine disability, and lumbar spine disability, the examiner provided no rationale for the opinion, and the Board has found the conclusions of the examiner to be otherwise inconsistent with the record. The Board finds that the opinion is therefore inadequate. A May 2011 VA examination includes the opinion that cervical degenerative disc disease is not caused by or related to the left shoulder impingement syndrome because the two are separate entities and there is no clinical correlation. The cervical disability is likely age related. She reiterated this opinion in September 2012 with the stated rationale that the service treatment records are silent for the cervical spine condition, it was diagnosed 18 years after service, and there is no clinical correlation. The cervical disability is likely age related. Setting aside the numerous inaccuracies in the May 2011 and September 2012 opinions, set out in detail above, the Board finds that neither opinion addresses the Veteran's assertion that the right shoulder and cervical spine disabilities were caused by overcompensation for her left shoulder disability. According to the Veteran, the left shoulder disability has caused her to alter her normal motions, posture, and body mechanics to prevent or minimize pain in the left shoulder, and this in turn has resulted in injury to the right shoulder, cervical spine, and lumbar spine. The examiner's notation of "no clinical correlation" may relate to this assertion, but is not specific enough for the Board to conclude that the examiner is acknowledging and addressing the Veteran's specific contentions with this finding. As the opinions do not address the Veteran's asserted theory of causation, they are inadequate. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). An inadequate examination frustrates judicial review. Hicks v. Brown, 8 Vet. App. 417, 422 (1995). If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for rating purposes. 38 C.F.R. § 4.2 (2012). In addition, regarding all of the remanded issues, the Veteran has not been provided with notice of the evidence necessary to substantiate a claim on a secondary service connection basis. As the Veteran's assertion is that each of the claimed disabilities is proximately due to or a result of a service-connected disability, such notice is required by the VCAA. Accordingly, the issues of entitlement to service connection for disabilities of the right shoulder, lumbar spine, and cervical spine are REMANDED for the following action: 1. Provide VCAA notice regarding the secondary service connection theory of entitlement for all remanded claims. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of her claimed right shoulder disability, lumbar spine disability, and cervical spine disability. The relevant documents in the claims file should be made available to the VA examiner. The VA examiner should be asked to consider the Veteran's assertion that the service-connected fibromyalgia, and/or left shoulder disability has caused her to alter her normal motions and body mechanics to prevent or minimize pain in the left shoulder, and this in turn has resulted in other claimed disabilities. The VA examiner is asked to provide all supported diagnoses of the lumbar spine, cervical spine, and right shoulder. For each diagnosis, the VA examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the corresponding disability is causally or etiologically related to a service-connected disability. If no causal relationship is found, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the disability was permanently worsened beyond its natural progress by any service-connected disability. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the requested medical opinion cannot be given, the examiner should state the reason(s) why. 3. Readjudicate the remanded claims. If any benefit sought on appeal is not granted, the Veteran and her representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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(s), as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2012). The remanded issues must be afforded expeditious treatment. The law requires that all issues 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). ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs