Citation Nr: 1326108 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-25 663 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from January to April 1980 and from September 11, to September 12, 2001. The record also shows that the Veteran had more than two years and one month of unspecified active service subsequent to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 decision by the RO which, in part, denied the benefits sought on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development must be accomplished prior to further consideration of the Veteran's appeal. The Veteran contends that his current right shoulder problems were due to an injury he sustained during a training exercise on an obstacle course while on active duty for training in June 1996. The evidentiary record includes a letter from a private doctor, received in February 2012, showing diagnoses of right shoulder arthritis, decreased range of motion and mild paralysis of the lower radicular brachial plexus, and an opinion to the effect that the Veteran's current right shoulder disabilities were caused by the June 1996 injury in service. The examiner noted the Veteran's history of having had chronic right shoulder pain ever since the injury. The examiner also noted the Veteran's history of being in a motor vehicle accident (MVA) in February 2010. The Veteran reported having had a temporary increase in right shoulder pain and that within a few months, the right should returned to the same pain level as before the MVA. Historically, the service treatment records (STRs) showed that the Veteran was seen for right shoulder pain in June 1996. At that time, the Veteran reported that he felt a strain in his right shoulder while on an obstacle course and had some popping when moving his arm. An examination of his right shoulder was completely negative and showed normal contour, no tenderness to palpation, negative cross over and full range of motion in the shoulder joint. X-ray studies of the shoulder were negative. The impression was rotator cuff strain, and the Veteran was given Naprosyn and scheduled for physical therapy for shoulder strengthening with follow-up as needed. The STRs showed that the Veteran was seen for right shoulder pain on one other occasion in November 1997. At that time, he reported that his right shoulder had not worsened over the past year, but was aggravated by quick motions such as throwing a football or basketball. The Veteran denied any constant pain, and said that he just had some soreness on use of the right shoulder. An examination of the shoulder was negative. There was no deformity, swelling or tenderness to palpation. The AC joint was intact and there was full and painless range of motion with abduction, adduction, extension, flexion and rotation. X-ray studies were negative. The assessment was probable rotation cuff injury. The Veteran was advised to continue active exercises, but to limit above shoulder weight lifting, and was returned to full duty. The STRs showed no further complaints, treatment, abnormalities or diagnosis for any right shoulder problems during his remaining years of reserve service. On a Report of Medical History for "IMA" examination in June 2001, the Veteran specifically denied any swollen or painful joints, arthritis, rheumatism or bursitis, lameness or painful or "trick" shoulder, and no pertinent abnormalities were noted on examination at that time. A private MRI report, dated in March 2009, indicated that the Veteran had right shoulder pain since he was involved in a MVA two weeks earlier. The impression included partial tear involving the superior fibers of the subscapularis tendon, small reverse Hill-Sachs defect, focal nondetached tear of the posterior superior labrum at 11 0'clock, type 2 acromion and mild AC arthritis may predispose to cuff impingement, and posterior instability. In the instant case, while the evidence showed that the Veteran was treated for discomfort in the right shoulder during a period of active duty for training in 1996, and again in November 1997, he was not shown to have any pertinent abnormalities on examination other than some popping in the shoulder joint. Furthermore, the Veteran denied any shoulder problems on a subsequent service examination in June 2001, and was not shown to have any pertinent abnormalities at that time. Although the evidence of record includes a favorable medical opinion relating the Veteran's current right shoulder problems to the injury in service, that opinion was based, in part, on the Veteran's assertion that he had chronic right shoulder pain ever since the initial injury in 1996. However, given the Veteran's specific denial of any shoulder problems on a service examination in June 2001, and his statement to medical personnel following the MVA in 2009, that he had shoulder pain "since" the accident, there is some question as to the accuracy of the Veteran's recollections. In any event, the Veteran has never been examined by VA for his current right shoulder problems. Therefore, the Board finds that additional development is necessary. In this regard, VA's duty to assist requires that a VA nexus opinion be obtained. Finally, the Board notes that the February 2012 private medical statement was received within 90 days of certification of the appeal to the Board, without a waiver of RO consideration. As the appeal must be remanded on other grounds, the additional evidence should be reviewed by the RO along with any evidence obtained as a result of this remand. See 38 C.F.R. § 20.1304(c) (2012). Part of VA's duty to assist under the Veterans Claims Assistance Act of 2000 (VCAA) is to provide the Veteran with an examination if, as in this case, there is competent evidence of a current disability, and the evidence indicates that the current disability may be related to an event in service. 38 C.F.R. § 3.159(c)(4) (2012). Therefore, one must be provided to him. See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) [the duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"]. On remand, the Veteran should also be asked to provide VA with the names and addresses of all healthcare providers who have treated him for any right shoulder problems since his discharge from service, including following the February 2010 MVA, and complete appropriate authorization for release of medical information forms, so that VA may attempt to assist him in the development of his claim. 38 C.F.R. § 3.159(c)(1). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be asked to provide the names and addresses of all health care providers who treated him for any right shoulder problems since his discharge from service. Of particular interest are any treatment records following his February 2010 MVA, as well as records before such accident. After the Veteran has signed the appropriate releases, all available outstanding records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. 2. The Veteran should be scheduled for a VA examination to determine the nature and etiology of any identified right shoulder disability. The claims folder must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All indicated tests and studies should be accomplished. The examiner should describe all findings in detail and provide a complete rationale for all opinions offered. After reviewing all of the evidence, including any STRs and/or post service treatment reports obtained on remand, the examiner should provide an opinion as to whether it is at least as likely as not (at least a 50-50 probability) that any identified right shoulder disability was due to the June 1996 injury while on active duty for training or is otherwise related to service. A fully articulated medical rationale for any opinions expressed should be set forth in the examination report. The examiner should address the particulars of this Veteran's medical history and the relevant medical science as applicable. If the examiner is unable to render an opinion without resorting to speculation, this should be noted and explained. In so doing, the examiner should identify any evidence required in order to render a non-speculative opinion, (which the AMC should attempt to obtain, and then return the claims file to the appropriate examiner for completion of the opinion). Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both 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. 3. After the requested development has been completed, the AMC should review all the evidence of record, including the February 2012 private medical report/opinion, as well as any information obtain by this remand, and readjudicate the merits of the claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The Veteran 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). _________________________________________________ K. OSBORNE 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).