Citation Nr: 1330289 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-21 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for right shoulder disability, to include as a qualifying chronic disability resulting from an undiagnosed illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from August 2001 to October 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. On May 8, 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge in Washington, D.C.. A transcript of that proceeding is of record. The instant matter was previously before the Board in June 2012, at which time it was remanded to the agency of original jurisdiction (AOJ) for additional development. Also before the Board at that time was the issue of entitlement to service connection for residuals of a low back injury. Upon completion of the requested development, the matters were readjudicated and in a December 2012 supplemental statement of the case (SSOC), entitlement to service connection for a right shoulder disability was denied and that matter was returned to the Board in March 2013. Also, in a December 2012 rating decision, the Veteran was awarded service connection for low back strain, evaluated as 40 disabling, effective from September 2, 2008. The Veteran was also awarded service connection for radiculopathy of the right and left lower extremities, each evaluated as 20 percent disabling, effective from September 2, 2008. To date, the Veteran has not raised any issue with respect to the awards of service connection for low back strain or bilateral lower extremity radiculopathy, to specifically include any disagreement with the disability ratings assigned or the effective dates of those assignments. Accordingly, that matter is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (explaining that a notice of disagreement (NOD)with respect to service-connectedness cannot initiate appellate review of the downstream element of compensation level); Holland v. Gober, 10 Vet. App. 433, 436 (1997) (holding that the AOJ's grant of service connection during the appellate process is "a full award of benefits on the appeal initiated by [the first NOD]" and any disagreement with the disability rating or effective date required a separate NOD to place those elements or issues in appellate status). 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 United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Moreover, the Court has held that once 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); 38 C.F.R. § 3.159(c)(4) (2013). As noted in the introduction, the issue of entitlement to service connection for a right shoulder disability, to include as a qualifying chronic disability resulting from an undiagnosed illness, was most recently remanded by the Board in June 2012. At that time, the Board noted that the Veteran's service treatment records (STRs) were negative for any complaints, treatment, or diagnosis pertaining to the right shoulder and that the report of his June 2004 separation examination reflected that his "upper extremities" were clinically evaluated as normal. On an accompanying Report of Medical History the Veteran denied having a "painful shoulder, elbow, or wrist." In claiming service connection for a right shoulder disability, the Veteran indicated that his disability began in 2004. He later testified that he did not sustain an in-service injury to the right shoulder but stated his belief that his shoulder disability was due to "wear-and-tear" during the course of service duties. Specifically, the Veteran noted having to sleep on the hard ground for a year and carry heavy guns over his right shoulder. In June 2012, the Board remanded the matter for an examination to determine the nature and etiology of any disability with respect to the Veteran's claim of service connection for a right shoulder disability. The examiner was requested to state whether the Veteran had any pertinent signs or symptoms of right shoulder pain. If signs or symptoms of a disability of the right shoulder were identified, the examiner was requested to comment as to whether any such signs or symptoms were specifically attributable to a known clinical diagnosis. A VA examination was conducted in July 2012, the report of which shows a diagnosis of right shoulder strain and notes complaints of right shoulder pain. The date of diagnosis was listed as 2002. The examiner indicated that x-rays of the right shoulder were negative, revealing no evidence of fracture, dislocation, or other significant abnormality. The examiner then stated his opinion that it was at least as likely as not that the Veteran's right shoulder strain had its clinical onset in service or was otherwise related to such period of active service. The basis of that opinion was noted to be consideration of the provided records, examination of the Veteran, and information contained in certain medical treatises regarding similar cases. In November 2012, the Veteran's claims folder was reviewed by a VA orthopedic surgeon, as the initial examiner was unavailable, for an addendum opinion. The reviewing clinician stated his opinion that it was less likely that not that the Veteran's present shoulder condition was incurred in or otherwise related to service, as the Veteran had no documented in-service complaints related to the shoulder. The Board finds several inadequacies with regard to the examination and addendum opinion reports. First, it is unclear to the Board what the July 2012 VA examiner was relying upon when he diagnosed a right shoulder strain, which was said to have occurred in 2002, as the Veteran's STRs are silent for complaints related to his shoulder and the Veteran himself has denied any in-service diagnosis related to the right shoulder. Further, neither examiner specifically discussed whether the Veteran's current complaints of right shoulder pain are related to that diagnosis or any other diagnosed right shoulder disability, nor is it clear that the Veteran has a currently diagnosed right shoulder disability, to include a right shoulder strain. Moreover, the addendum opinion fails to take into consideration the Veteran's lay assertions regarding his service duties or discuss whether any disability/symptomatology is the result of "wear and tear" as alleged by the Veteran. As such, the Board finds that another remand is necessary as the June 2012 VA examination report and February 2012 addendum opinion are inadequate to rely upon for evaluation purposes in this case. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (discussing adequacy of medical opinions and noting that it is incumbent on the VA examiner to consider all of the relevant evidence before forming an opinion); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate factual premise has no probative value). Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ should send to the Veteran a new VCAA notice letter. The letter should specifically notify him of the information and evidence necessary to substantiate his claim of service connection for a right shoulder, to include as a result of an undiagnosed illness. The Veteran should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 2. Schedule the Veteran for a VA examination with an appropriate specialist to determine the nature and etiology of any disability manifested by right shoulder pain. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner in conjunction with the examination. All studies, tests, and evaluations should be performed as deemed necessary by the examiner and the results of any testing must be included in the examination report. All pertinent pathology shown on examination should be annotated in the evaluation report and the examiner should provide clear diagnoses of any identified disability of the right shoulder. The examiner should discuss the July 2012 VA examiner's diagnosis of a right shoulder strain in 2002 and state whether he/she agrees with this diagnosis and/or whether such diagnosis is supported by the evidence of record. After a careful review of the claims folder, including consideration of physical examination and any objective testing results, the examiner should identity whether the Veteran's complaints of right shoulder pain can be attributed to any diagnosed disability and, if so, opine as to whether it is at least as likely as not, i.e. 50 percent probability or greater, that any currently diagnosed disability manifested by right shoulder pain had its onset during the Veteran's active duty or is otherwise causally or etiologically related to his active service or any incident therein. The examiner should set forth medical reasons to accept or reject the Veteran's assertions that sleeping on his right side on hard ground for a year, carrying heavy guns over his right side, and general "wear and tear" as a result of his service duties led to the development of any current shoulder disability. The examiner should also discuss the June 2004 separation examination report reflecting normal upper extremities on clinical evaluation and the Report of Medical History completed by the Veteran in which he denied having or having had painful shoulder, elbow or wrist. If the Veteran's complaints of right shoulder pain cannot be attributed to any known clinical diagnosis, the examiner should indicate whether such symptomatology represents an objective indication of a chronic disability resulting from an undiagnosed illness related to any confirmed Persian Gulf War service. If the examiner determines that he/she cannot provide an opinion on any issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. (The AOJ should ensure that any additional evidentiary development suggested by the examiner is undertaken so that a definite opinion can be obtained.) A full and complete rationale for all opinions expressed is required. Regardless of whether the examiner's opinion is favorable or negative, he/she must provide support for all opinions rendered that includes reference to lay or medical evidence contained in the claims file, if appropriate, or to known medical principles relied upon in forming his opinion. 3. After undertaking any other development deemed appropriate, the AOJ should review the record and re-adjudicate the issues remaining on appeal. If any benefit sought is not granted, the Veteran should be furnished with an SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2013).