Citation Nr: 1327385 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 10-21 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a left shoulder disability, to include as secondary to degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from March 2001 to May 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran's claim for service connection for a left shoulder disability. The Board notes that following a March 2013 rating decision that denied entitlement to service connection for a psychiatric disorder, for both compensation and treatment purposes, a photocopy of a VA Form 21-526b (Veteran's Supplemental Claim for Compensation) asserting that depression and "suicidal tendencies" were the result of medication taken for service connected disability that had been received at the RO prior to the March 2013 rating decision was received at the Board in June 2013. As the original document was of record at the time of the March 2013 decision and in no way expressed dissatisfaction or disagreement with the rating decision made subsequent to receipt of this document, the Board does not view the photocopy received in June 2013 as a notice of disagreement with the March 2013 denial of the claim for service connection for a psychiatric disorder. 38 C.F.R. § 20.201. As such, a statement of the case with respect to this claim pursuant to Manlincon v. West, 12 Vet. App. 238 (1999) is not required. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim that contains additional clinical records not physically of record dated through March 7, 2013. While the aforementioned March 2013 rating decision documents consideration of the records dated through March 7, 2013, the September 2012 supplemental statement of the case (SSOC) addressing the matter adjudicated herein only documents consideration of additional records contained in the Virtual VA file dated through September 2012. 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 service treatment reports reflect complaints of neck and left shoulder pain in July 2005, November 2005, and March 2006 following an automobile accident in 2003. [Service connection for degenerative disc disease of the cervical spine as a residual of this accident was granted by the January 2009 rating decision. This decision also granted service connection for left arm radiculitis as secondary to the service-connected cervical spine disability]. Left shoulder impingement syndrome was diagnosed during service in July 2005, and an X-ray of the left shoulder conducted during service in August 2005 was negative. The medical history collected in conjunction with the separation examination showed the Veteran reporting pain in the left shoulder and "numbness, tingling, and complete loss of feeling in [the] shoulder and arm" when he raised his left arm beyond a position parallel to the ground. While the RO granted service connection for degenerative disc disease of the cervical spine and secondary left arm radiculitis in its January 2009 rating decision, it denied the claim for service connection for a left shoulder disability on the basis of there being no left shoulder disability demonstrated at that time, to include as set forth in the reports from an October 2008 VA medical examination. However, there is clinical evidence of record subsequent to this examination indicating the presence of current left shoulder disability, to include an April 2009 VA outpatient treatment report physically of record reflecting treatment for left shoulder pain and noting a diagnosis of left rotator cuff strain. Moreover, clinical records contained in the Virtual VA File dated through January 10, 2013, document treatment for left shoulder pain, and some of these reports reflect a diagnosis of left rotator cuff syndrome. The "current disability" requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Given the post-service diagnoses of a left shoulder disability and continuing treatment for left shoulder pain documented in the VA clinical records subsequent to the October 2008 VA medical examination, a current left shoulder disability must be conceded for the purposes of adjudicating the claim on appeal. McClain, supra. In addition and as indicated by the manner in which the issue has been recharacterized on the Title Page, the Board has found that the claim for service connection on appeal encompasses entitlement to service connection on a secondary basis as set forth at 38 C.F.R. § 3.310. The RO has not conducted an initial adjudication on this basis, and to ensure due process to the Veteran, the RO will be directed below to conduct the initial adjudication of the claim for service connection on a secondary basis. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). In light of the above, the Board concludes that a VA examination that includes an opinion as to whether any left shoulder disability demonstrated since the claim has been pending is etiologically related to service, or service-connected degenerative disc disease of the cervical spine, is necessary in this case in order to comply with the duty to assist. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In light of the necessary additional adjudication and development described above and in order to fully ensure that the duty to assist has been satisfied, the RO upon remand will be requested to conduct the appropriate action to obtain any additional records which may be available. Finally, this remand will afford the RO the opportunity to conduct the initial review of the additional records contained in the Virtual File dated through March 2013 that have been added since the September 2012 SSOC, and any other records which may be added to the Virtual File, in conjunction with its adjudication of the claim for service connection for a left shoulder disability so as to ensure due process to the Veteran. See Bernard, supra. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding VA or non-VA treatment records pertinent to a left shoulder disability. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to submit such records, as provided. 2. The RO should also arrange for an appropriate examination of the Veteran to determine the etiology of any current left shoulder disability. The Veteran's claims file, to include this remand, must be reviewed by the examiner in conjunction with the examination. Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should provide an opinion that responds to the following: (a) Please identify (by medical diagnosis) each left shoulder disability found. (b) As to each left shoulder disability diagnosed, please provide an opinion as to whether such is at least as likely as not (i.e., probability of 50 percent or greater) causally or etiologically related to the Veteran's service, to include the automobile accident that occurred therein. In rendering this opinion, the examiner is to not base a negative opinion on the absence of relevant in-service symptomatology or pathology and is to consider the Veteran's complaints of continuity of appropriate symptomatology from service until the present time. (c) As to each left shoulder disability diagnosed, please opine as to whether such is at least as likely as not caused or aggravated by (increased in severity due to) the Veteran's service-connected cervical spine disability. If the opinion is that any such disability was not caused by, but is aggravated by, the service-connected cervical spine disability, the examiner should specify, to the extent possible, the degree of disability (pathology/impairment) that is due to such aggravation. If it is not possible to provide any requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinions. The opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims file must be provided to the examiner for review and the examiner must state in the examination report that the claims folder has been reviewed. 3. After completion of the above, the RO should review the expanded claims file and determine whether the claim for service connection for a left shoulder disability may be granted. To the extent the claim is denied, the RO should furnish the Veteran and his representative with an appropriate SSOC that includes consideration of entitlement to service connection on a direct basis as well as secondary to the service-connected cervical spine disability. The SSOC should also document consideration of any records added to the Virtual File after those dated through September 2012 that were considered in the September 2012 SSOC. After they are afforded an opportunity to respond, the case should be returned to the Board for appellate review. 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). _________________________________________________ JENNIFER HWA Acting 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).