Citation Nr: 1330510 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 03-32 177A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a left shoulder disability as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from August 1978 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In a May 2006 decision, the Board denied entitlement to service connection for a left shoulder disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2007 Joint Motion for Remand (JMR), the Veteran's representative and VA's General Counsel agreed that the Board's May 2006 decision should be vacated and remanded. In an Order later that month, the Court granted the motion and remanded the case for compliance with the instructions in the JMR. In May 2008, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development and to schedule a Board hearing. The Veteran provided testimony at a Board hearing in February 2010. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Board finds it necessary to remand the case to the AOJ for additional development and consideration. The Veteran contends that he has a left shoulder disability resulting from his service-connected disabilities. See 38 C.F.R. § 3.310. He does not relate any left shoulder problems to his military service. At a Board hearing in February 2010, the Veteran testified that he injured his left shoulder in approximately 2002 when he fell after his low back gave way. He stated that, since that time, his left shoulder has bothered him. Service connection is currently in effect for disc herniation at L5-S1 and degenerative disc disease of the lumbar spine, degenerative joint disease and chondromalacia patella of the right knee, and degenerative joint disease and chondromalacia patella of the left knee. The Veteran is also service connected for gastroesophageal reflux disease (GERD) but he does not contend that GERD has had an impact on the left shoulder. In March 2004, the Veteran underwent VA examination in connection with the claim. The examiner provided a diagnosis of left shoulder strain and posttraumatic cyst. The examiner also provided an opinion that the Veteran may have tripped and braced a fall by using his left hand and arm, but it is unlikely a direct consequence of his service-connected low back and knee conditions. The examiner concluded that the Veteran's left shoulder condition is not as likely as not secondary to service-connected low back and knee conditions. Once VA undertakes the effort to provide an examination or opinion, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). In the Veteran's case, the Board does not find the March 2004 VA opinion to be wholly adequate. After the Board's May 2008 remand, the Court decided a case in which it held that the Board errs in relying on a medical opinion that only addresses whether a nonservice-connected claim is "related to" a service-connected disability and the opinion does not address whether the nonservice-connected disability is aggravated by a service-connected disability. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In the Veteran's case, the March 2004 VA opinion addressed only secondary causation and it did not address whether the Veteran's left shoulder is aggravated by service-connected disability. Therefore, the claim must be remanded for another VA examination and opinion. It appears that the Veteran receives regular treatment at the VA Medical Center (VAMC) in San Juan, Puerto Rico. Updated treatment records should be obtained in light of the remand. Lastly, although the Veteran was provided with information regarding how to substantiate the claim in a July 2002 notice letter, the Board finds that he should be sent a new notice letter on remand. This action is to ensure comprehensive notice is provided, including the information and evidence necessary to substantiate a service connection claim on a secondary basis, and the general criteria for establishing disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, this case is REMANDED for the following actions: 1. Send a new notice letter to the Veteran. The letter should notify him of the information and evidence necessary to substantiate his claim of service connection for a left shoulder disability. Notice regarding secondary service connection must be included. The letter should also contain notice of the manner in which both disability ratings and effective dates are assigned for awards of disability benefits. 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. Obtain the Veteran's more recent treatment records (since April 2011) from the San Juan VAMC and associate the records with the claims folder. 3. Thereafter, schedule the Veteran for a VA examination of his left shoulder. The entire claims file, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified left shoulder disability was either (a) caused by, or (b) aggravated by any of the Veteran's service-connected back or knee disabilities. Currently, service connection affecting the back and knees is in effect for disc herniation at L5-S1 and degenerative disc disease of the lumbar spine, degenerative joint disease and chondromalacia patella of the right knee, and degenerative joint disease and chondromalacia patella of the left knee. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. Consideration should be given to the Veteran's statements that he fell and injured his left shoulder in approximately 2002 when his low back gave out. 4. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further 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 by VA. 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 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). _________________________________________________ JOAQUIN AGUAYO-PERELES 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).