Citation Nr: 1329234 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 11-12 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served during the Vietnam era from November 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The case was subsequently transferred to the RO in Montgomery, Alabama. The Veteran indicated in his May 2011 VA Form 9 that he wished to testify at a hearing before the Board. The Veteran was subsequently notified in October 2012 that he had been scheduled for such a hearing in December 2012; however, later that month, he withdrew his request for a hearing. Accordingly, there is no outstanding hearing request. See 38 C.F.R. § 20.704(e) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in that file reveals documents that are either duplicative of the evidence or irrelevant to the issues on appeal. 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 Veteran was afforded a VA examination in June 2010 in connection with his claims. With regard to a left shoulder disorder, the examiner diagnosed him with degenerative arthrosis of the left shoulder with a partial rotator cuff tear and opined that it was less likely as not due to or a result of his military service. In rendering this opinion, the examiner acknowledged that the Veteran had a left clavicle fracture in service, but also noted that the service treatment records were negative for any ongoing treatment and a July 1970 separation examination revealed normal upper extremities. She further observed that the Veteran did not seek treatment or complain of any shoulder problems for over 38 years. However, the Veteran has reported that he has had shoulder pain since service. The examiner did not discuss the Veteran's competent lay statements in her rationale. It would have also been helpful if the examiner had brought her expertise to bear in this case regarding medically known or theoretical causes of such a disorder or described how it generally presents or develops in most cases. Similarly, the June 2010 VA examiner diagnosed the Veteran with a partial medical meniscus tear of the left knee and opined that it was less likely as not caused by or a result of his military service. In so doing, she noted that there was evidence of acute left knee arthritis due to pyogenic organisms in May 1969, but she also observed that the inflammation later subsided and that the symptoms and temperature returned to normal. It was further noted that the Veteran returned to duty and that there was no ongoing evaluation or treatment. His separation examination revealed normal lower extremities, and he did not seek treatment for over 38 years. However, the Veteran has indicated that he has had pain in his knee "over the years," and denied that he has suffered any other injuries to his left knee. The examiner did not discuss these allegations in her rationale, nor did she discuss how a disorder generally develops. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that a clarifying medical opinion is necessary to determine the nature and etiology of the Veteran's current left shoulder and left knee disorders. The Board also notes that there may be additional treatment records that are not associated with the claims file. In this regard, the June 2010 VA examiner noted that the Veteran "sought medical attention in VA system in approx [sic] 2000" for his shoulder. However, the earliest VA medical records relating to the Veteran's shoulder are dated in August 2008. The examiner later noted that "the record is silent with respect to an active chronic left shoulder condition until VA treatment records in August 2008." It is therefore unclear whether the examiner misspoke or was referring to treatment records that are not currently of record. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his left shoulder and left knee disorder. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. The RO/AMC should obtain any outstanding VA medical records dated from January 2000 to the present. 2. The RO/AMC should refer the Veteran's claims folder to the June 2010 VA examiner or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any left shoulder disorder and left knee disorder that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The Veteran's service treatment records document a left clavicle fracture in June 1970, as well as left knee arthritis due to pyogenic organisms in May 1969. The Veteran has stated that he has had left shoulder pain since his military service. He has also indicated that he has had left knee pain "over the years" and denied that he has suffered any other injuries to his left knee. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's current left shoulder and left knee disorders manifested in service or are otherwise causally or etiologically related to his military service, including his documented symptomatology therein. In rendering these opinions, the examiner should address the Veteran's own lay statements. He or she should also discuss medically known or theoretical causes of the disorders and describe how such disorders generally present or develop in most cases. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 4. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ JESSICA J. WILLS 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).