Citation Nr: 1331495 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-46 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2009 rating decision in which the above-referenced Regional Office (RO) of the Department of Veterans Affairs (VA) denied service connection for a left shoulder disability. In May 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development, to include obtaining a medical nexus opinion regarding the Veteran's left shoulder condition. Although an opinion was issued in July 2012, for reasons set forth below, the Board finds that, because of deficiencies in the VA examiner's opinion regarding the Veteran's left shoulder disorder, there has not been substantial compliance with the Board's May 2012 remand directives, and another remand of the Veteran's claim for service connection for a left shoulder disorder is warranted. Stegall v. West, 11 Vet. App. 268 (1998). Although further delay of this appeal is regrettable, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran essentially contends he has a disorder of his left shoulder that is related to his military service. He claims that his left shoulder disability is the result of heavy physical labor that he performed in service. He also contends that, when lifting a tire onto a truck in March 1966 while on active duty, he felt pain in his shoulder and sought treatment for pain at the time. Finally, he contends that his shoulder problems have continued from that time to the present. In May 2012, the Board remanded this matter to obtain an opinion as to whether it is at least as likely as not, more likely than not, or less likely than not (i.e., probability less than 50 percent) that any diagnosed chronic left shoulder disability had its clinical onset in service or is otherwise related to the Veteran's active duty and whether any left shoulder disability that the Veteran may have is consistent with his competent and credible complaints of having performed heavy physical labor during service, including when he lifted a tire onto a truck in March 1966 and thereafter experienced left shoulder pain. In answering these questions, the examiner was directed to consider the Veteran's competent and credible reports of having consistently experienced left shoulder problems since service. In July 2012, a VA examiner issued a VA DBQ (disability benefits questionnaire) opinion, addressing whether the Veteran's left shoulder disability had an onset in, or was otherwise related to, service. The VA examiner opined that the Veteran's left shoulder rotator cuff tear associated with left labral tear and AC joint arthritis is less likely than not (less than 50/50) caused by, or less likely as not had its clinical onset in, service-and is less likely as not otherwise related to activities during military service. For rationale, the examiner indicated that there was no documentation that mentions that the Veteran had a shoulder injury during service and that on July 6, 1977, during his reentry examination, a statement of his present health noted that the only medical problem was "sinusitis." Further, the VA examiner noted that the Veteran had presented for an initial visit through the VA health system in November 2008, for left shoulder pain. The VA examiner finally noted that there were no other records of a left shoulder condition from the time of Veteran's release from active duty in August 1977 until November 2008, which was noted to be "about 30 years of no records of left shoulder pathology". The Board finds the VA examiner's opinion from July 2012 to be problematic for several reasons. First, the examiner did not consider the Veteran's competent and credible reports of having consistently experienced left shoulder problems since service. Rather, the VA examiner provided an opinion that was essentially based solely on the rationale that there were no records of a left shoulder condition from the time of Veteran's release from active duty in August 1977 until November 2008, and that examiner noted that this was "about 30 years of no records of left shoulder pathology". The examiner did not mention or comment on the Veteran's reports of left shoulder problems since service. The Board emphasizes that lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues [see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011)], as to the specific issue in this case, the onset and etiology of a left shoulder disorder falls outside the realm of common knowledge of a lay person. Jandreau, supra. The United States Court of Appeals for Veterans Claims (Court) has held that, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). After reviewing the VA DBQ report from July 2012, the Board concludes that such examination is inadequate and that another is warranted. Specifically, based on the foregoing, the Board concludes that a medical opinion, on the question of whether the Veteran's left shoulder disability is as likely as not related to his active service, is needed. Stegall v. West, supra; Barr v. Nicholson, supra. Accordingly, the case is REMANDED for the following action: 1. Forward the claims folder to the examiner who conducted the July 2012 VA DBQ examination for a supplemental opinion. Request that the examiner review the claims folder again and note that such review has been accomplished. If the prior examiner is not available, or is unable to provide a supplemental opinion, forward the claims folder and a copy of this remand to another appropriate examiner(s) in order to render the requested medical opinions noted below. a. The examiner should be made aware of the Veteran's report of continuity of left shoulder symptoms/problems since service; should be advised as to the Veteran's competency to report lay-observable events and on the presence of symptoms; and should be asked to provide additional commentary regarding the Veteran's reports of continuity of left shoulder symptoms/problems since service. b. The examiner should be requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's diagnosed chronic left shoulder disability (left shoulder rotator cuff tear associated with left labral tear and AC joint arthritis), had its clinical onset in service or is otherwise related to the Veteran's active duty. The examiner should specifically state whether any left shoulder disability that the Veteran may have is consistent with his competent and credible complaints of having performed heavy physical labor during service, including when he lifted a tire onto a truck in March 1966 and thereafter experienced left shoulder pain). In answering these questions, the examiner should also consider the Veteran's competent and credible reports of having consistently experienced left shoulder problems since service. c. A complete rationale should be given for all opinions and conclusions expressed. If the examiner finds that he/she the above-requested opinions cannot be rendered on a medical or scientific basis without resort to speculation, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 2. Once the above-requested development has been completed, the claim for service connection for a left shoulder disability must be readjudicated. If the decision remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits and must be given an opportunity to respond. The case must then be returned to the Board for further appellate consideration, if otherwise in order. 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 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. 2012). _________________________________________________ THERESA M. CATINO 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) (2012).