Citation Nr: 1328035 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 08-10 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for a left shoulder disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from August 1993 to January 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. This case has been previously remanded in April 2011 and February 2012. In connection with this appeal, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge sitting in Washington, D.C., in April 2013; a transcript of that hearing is associated with the claims file. 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. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran has asserted that service connection is warranted for a left shoulder disorder because such is related to a left shoulder injury that occurred during service. At the April 2013 hearing, the Veteran testified that, during boot camp in August 1993, he injured his left shoulder while carrying a heavy laundry bag that pulled his entire arm backwards. He testified that he did not feel pain immediately after the injury, but that he was unable to move his left arm the next morning. The Veteran testified that he was taken to medical but was told there was nothing they could do, so he started taking medication. He testified, however, that, despite taking pills, he felt a burning sensation below the shoulder blade area, which began moving up to the neck area. The Veteran further stated that he has experienced left shoulder pain since service, which involves both his left shoulder blade and his upper neck/shoulder area. The Veteran was afforded a VA examination in March 2012, at which time the examiner noted that there was no left shoulder pathology on examination. Nevertheless, she observed there was evidence of treatment for left shoulder strain in October 1993 and that the Veteran has reported having left shoulder pain since 1993. She opined that it is less likely than not that the current disability is caused by or related to the in-service injury for the following reasons. First, the March 2012 VA examiner noted that the examination was normal, except for tenderness in the trapezius, which she stated was unlikely related to service based on the differing locations of the complaints. The VA examiner also noted that the reported injury in August 1993 is temporally different from the clinical visit shown in October 1993. While the March 2012 VA examiner provided a medical opinion supported by a rationale, as requested by the Board, the Board finds that the opinion is inadequate because it does not appear that the examiner was aware of all relevant facts in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). At the outset, the VA examiner noted that the Veteran's examination was normal with the exception of tenderness in the left trapezius. While the medical evidence of record shows that the Veteran has consistently complained of pain in his left shoulder, an April 2007 EMG revealed left long thoracic neuropathy. It was noted that such could be caused by strenuous sport/activity or local trauma/injury. However, at such time, no neurological examination of the Veteran's left shoulder was conducted and, thus, the Board is unable to determine if the Veteran's complaints of left shoulder pain are related to the diagnosis of left long thoracic neuropathy. In this regard, the Board notes that the Veteran recently testified that he continued to experience burning in the shoulder blade area during service after the initial injury. As also noted, the VA examiner noted that the Veteran's current left trapezius tenderness is unlikely related to service because it is in a different location from the pain reported during service. However, the Veteran recently testified that his left shoulder pain began in the shoulder blade area but travelled to the neck area. He also testified that he current experiences pain in both the shoulder blade and neck area. Given that there remains a question as to whether the Veteran's current symptoms are related to his in-service injury and that there is competent lay evidence of pain in the shoulder and neck area, which the Veteran has reported has been present since the initial injury, the Board finds that the March 2012 VA examiner should provide an addendum opinion regarding the etiology of any current left shoulder disorder, to include left long thoracic neuropathy. Finally, the Board notes that the evidentiary record contains VA treatment records from the Washington, D.C., VA Medical Center, dated through April 2010. On remand, updated records from the VA should be obtained and associated with the Veteran's claims file and the Veteran should be afforded an opportunity to identify additional medical evidence relevant to his claim that may not be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter requesting that he identify any healthcare provider who treated him for his left shoulder disorder after service. After securing any necessary authorization from him, obtain all identified treatment records, to include VA treatment records from the Washington, D.C., VA Medical Center dated from April 2010 to the present that are not already included in the claims file. 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 provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who conducted the Veteran's March 2012 VA examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the March 2012 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. (A) The examiner should identify all current disorders of the left shoulder. In this regard, the examiner should consider the entire evidentiary record, including the findings of the April 2007 EMG, which showed left long thoracic neuropathy. (B) For each currently diagnosed left shoulder disorder, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or more) that any such disorder was incurred or is otherwise the result of the Veteran's military service. In answering the foregoing, the examiner must consider the in-service treatment for left shoulder pain in October 1993, the April 2007 VA record showing an impression of likely left long thoracic nerve neuropathy that could be caused by strenuous sport/activity or local trauma/injury, as well as the Veteran's competent assertions regarding the nature, onset, and progression of his symptoms, and the lay evidence of continuity of symptomatology after service. A rationale for any opinion offered must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran should be issued a supplemental statement of the case, which includes consideration of all evidence contained in the paper and Virtual VA claims files. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 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). _________________________________________________ A. JAEGER 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).