Citation Nr: 1325213 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 05-00 348 A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to benefits under 38 U.S.C.A. § 1151 for residuals of a left rotator cuff injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1963 to June 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Houston, Texas VARO. In June 2010, a videoconference hearing was held before the undersigned; a transcript of the hearing is included in the claims file. At the hearing the Veteran sought, and was granted, a 60 day abeyance period for submission of additional evidence. That period lapsed; no additional evidence was received. In August 2010 and March 2012, the Board remanded the matter for further evidentiary development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND In a previous [August 2010] remand, the Board noted that the Veteran underwent VA left total shoulder replacement surgery in May 1997. He contends that an improper prosthesis was implanted in his shoulder in this surgery at the Audie Murphy VA Medical Center. The Board also noted that in May 2000, the Veteran underwent a total left shoulder revision by Dr. Lifland at Christus Spohn Hospital due to dislocation of the original prosthesis, and a new prosthesis was implaced; and in September 2000, he underwent reinsertion of the head component of the left shoulder prosthesis. On remand, both in August 2010 and in March 2012, the Board noted that the Veteran's complete medical records pertinent in this matter had not been secured, notably those from Christus Spohn Hospital and Dr. Lifland. Because pertinent evidence was not associated with the record, the Board remanded the matter to obtain the outstanding non-VA treatment records pertaining to the May and September 2000 left shoulder surgeries, finding that such records are necessary for a complete history of the left shoulder disability and proper consideration of the matter on appeal and must be secured. The remand instructed that the Veteran be informed of his need to assist in the matter by providing updated releases for the records and that it is ultimately his responsibility to ensure that private records sought are received. The Board also instructed that, after the development for records was completed, the Veteran was to be afforded a new VA examination to address his allegations/the medical questions raised by the claim under 38 U.S.C.A. § 1151. The Veteran is once again advised that a governing regulation, 38 C.F.R. § 3.158, provides that where evidence (including releases for private records) requested in connection with a claim for VA benefits is not received within a year of the request, the claim will [emphasis added] be considered abandoned. In March 2012, the RO issued a letter to the Veteran requesting that he complete releases to obtain treatment records from Dr. Lifland and Christus Spohn Health System. He did not respond; the RO nonetheless proceeded with arranging for a VA examination in April 2013. The Board notes that the RO followed the very same [incorrect] procedure after the Board's August 2010 remand. In April 2013, a VA examiner gave a negative nexus opinion regarding the matter on appeal based on review of the record which the Board has found to be incomplete. The April 2013 examiner opined that the Veteran's left shoulder disability was most likely caused by his alteration of the implant and from the results of complications from two surgeries at non-VA hospitals; the Board must question this opinion given that the records of the two non-VA surgeries remain outstanding. Notably, the probative value of a medical opinion rests in part on the completeness of the record on which it was based. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The record clearly shows that pertinent records are outstanding. Those records cannot be secured by VA without the Veteran's releases. The Veteran's claim cannot be properly addressed without those records, as their absence leaves the disability picture incomplete. Because the RO readjudicated the matter on the merits following the Veteran's lack of response, suggesting that his lack of cooperation is not critical, this matter must once again be remanded to the RO for compliance with the previous order for development of the evidentiary record. After (and only after) the outstanding records are received, further development suggested by such additional evidence, to include another VA examination to secure an opinion that is based on a complete history of the disability, or an addendum opinion by the April 2013 examiner, may be necessary. The Board finds the April 2013 VA examination and medical opinion to be inadequate, and that the March 2012 remand instructions were not fulfilled as directed. It is well-established in case law that when remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). When the Board issues specific remand instructions, there generally is a reason for the specificity. Here, the actions previously sought by the Board are necessary for a proper adjudication of the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to submit an authorization and release for VA to obtain the records of all treatment he has received for a left shoulder disability from Dr. Lifland and Christus Spohn Health System from May 2000 to the present. He must be afforded the full one year period of time provided by regulation to respond (or to expressly indicate that he will not cooperate with the request). If he again does not submit the authorization forms sought, as requested, the claim must be processed under 38 C.F.R. § 3.158 as abandoned. If he provides the identifying information and releases sought, the RO should secure for the record copies of the complete clinical records of the identified treatment not already associated with the claims file, specifically including the complete treatment records from Dr. Lifland and those from Christus Spohn Health System. If any records cannot be secured because they have been irretrievably lost or destroyed, it should be so noted for the record, and the Veteran and his representative should be so notified. If the records are available, but not received pursuant to the RO's request, the Veteran must be so advised and reminded that ultimately it is his responsibility to ensure that private records sought are received. If a submission by a provider or the Veteran is incomplete, the Veteran must be so advised, and afforded the opportunity to complete the submission. If a private provider does not respond to the RO's request for records, and the Veteran does not submit such records upon being so advised, the claim must be processed as abandoned under 38 C.F.R. § 3.158(a). 2. After the development sought above is completed (and only if it is completed), the RO should arrange for any further development indicated by any newly obtained evidence, including an examination by an orthopedic surgeon to assess the propriety of his 1997 VA left shoulder replacement surgery. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran, and review of the complete record (specifically including records of the May and September 2000 left shoulder surgeries), the examiner should provide responses to the following: (a) Does the Veteran have additional left shoulder disability (other than the normal/expected results of the procedure) following the 1997 VA shoulder replacement surgery? [The explanation of rationale for the response to this question should include discussion of his need for revision.] (b) If the response to (a) is affirmative (i.e. he does have additional disability), is such disability the result of/caused by the VA surgical treatment he received? [Note: additional disability caused by failure to follow properly given instructions does not causality from VA treatment.]. (c) If the Veteran has additional disability and VA surgical treatment was the cause, was carelessness, negligence, lack of proper skill, or other incidence of VA fault in furnishing the treatment a proximate cause of the additional disability? Is the additional disability due to an event not reasonably foreseeable/not an expected consequence of the surgery? [The rationale for the response to this question must address the allegation that an improper prosthesis was implanted by VA in 1997, resulting in the need for revisions.] The examiner must explain the rationale for all opinions (to include discussion of the reason(s) for the Veteran's need for revision surgeries) in detail. 3. The RO should review the record, ensure that the development sought is completed in its entirety, as specifically instructed herein, and then re-adjudicate the claim. If it remains denied (or is dismissed as abandoned under 38 C.F.R. § 3.158(a)), the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ George R. Senyk 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).