Citation Nr: 1326757 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-46 498 ) 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. ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from May 1972 to May 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In January 2013, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. 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 The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the June 2013 remand, the Board noted that the March 2012 examiner had diagnosed the Veteran with posttraumatic arthritis acromioclavicular joint for the claimed left shoulder disability, upon X-ray testing, and provided a negative medical opinion against the possibility that the Veteran's left shoulder disability was causally related to an in-service motor vehicle accident in May 1976, as alleged by the Veteran. However, the Board found that the March 2012 VA examiner's opinion was inadequate because it was based upon the lack of medical documentation of treatment for a left shoulder disability during and since service. The Board also found that the opinion incorrectly stated that the Veteran's personal statements contained no complaints of any left shoulder pain or other symptoms, despite several personal statements to the contrary. Accordingly, the claim was remanded in January 2013 to obtain another medical opinion addressing the nature and etiology of the Veteran's left shoulder disability. In accordance with the Board's January 2013 remand, the Veteran was afforded another VA examination in April 2013. The April 2013 examiner diagnosed degenerative joint disease (DJD) of the acromioclavicular joint of the left shoulder, and opined that the disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He also opined that the Veteran's current post-traumatic arthritis of the acromioclavicular joint of the left shoulder is less likely than not related, caused by, or aggravated by his service-connected disability of degenerative disc disease of the cervical spine. The examiner specifically stated that he agreed with the opinion of the March 2012 VA examiner, which he found to be "sound and very thorough," and indicated that his concurrent opinion was based on the same evidence used by the March 2012 examiner for her negative opinion. Specifically, the lack of medical of treatment for a left shoulder disability or objective evidence of a left shoulder condition during and since service. In this regard, the examiner pointed out that although the Veteran's separation physical in March 1976 was negative for evidence of a "painful or trick shoulder or elbow," the Veteran had reported that his MVA accident and left shoulder injury occurred in May 1976, after his separation physical. Nevertheless, he still noted that additional records were negative for left shoulder pathology, including a December 1992 Hearing Officer Decision, which granted the Veteran service connection for migraine headaches and a chronic cervical strain, related to his May 1976 in-service MVA. The examiner did not offer any other explanation for his negative opinion. Therefore, the Board finds that the April 2013 examiner essentially gave the same opinion as the March 2012 examiner, which the Board has already found to be inadequate. As noted in the January 2013 remand, the mere absence of treatment records showing documentation of the claimed condition cannot be the sole basis for concluding a claimed condition was not present during service or since or is unrelated to the Veteran's service. See Buchanan v. Nicholson, 451 F.3d at 1331. Unfortunately, the January 2013 opinion improperly relied upon the absence of medical treatment for a left shoulder disorder both during and following service. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Therefore, the Board finds a remand is necessary for another medical opinion addressing the possibility of both direct and secondary service connection for a left shoulder disability, with consideration of the Veteran's competent lay statements of a continuity of left shoulder symptoms since his claimed in-service left shoulder injury. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, with an examiner who has not previously examined him, to determine the nature and etiology of the Veteran's left shoulder disability. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report or in an addendum. All indicated tests and studies, and any other diagnostic procedures deemed necessary, should be conducted. In particular, the examiner is requested to provide an opinion and rationale on the following: a) Please identify any currently diagnosed left shoulder disability. b) Assuming there is a confirmed left shoulder disability, the examiner is then asked to provide an opinion as to whether it is at least likely as not (a 50% or higher degree of probability) that it had its clinical onset during active duty service in a motor vehicle accident in May 1976, as alleged by the Veteran; or is any such disability otherwise related to such periods of service, including to any in-service injury or disease? Why or why not? c) For any diagnosed left shoulder disability, the examiner should also opine whether it is at least as likely as not (a 50% or higher degree of probability) that any left shoulder disability is caused or aggravated by the Veteran's service-connected cervical spine disability. If so, what is the baseline level of disability prior to aggravation and what is the permanent, measurable increase in pathology attributable to the service-connected cervical spine disability. The examiner must consider the Veteran's competent assertions of in-service injury of the left shoulder from an alleged motor vehicle accident in May 1976, and a history of post-service left shoulder pain since that alleged injury. A complete rationale for all conclusions and opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. 3. Then readjudicate the claim in light of any additional evidence. If this claim is not granted to the Veteran's satisfaction, send him a Supplemental SOC (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of this remaining claim. 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). _________________________________________________ F. JUDGE FLOWERS 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).