Citation Nr: 1333665 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 04-38 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for right shoulder disability, to include as secondary to chronic left shoulder strain with degenerative joint disease. 2. Entitlement to an initial rating in excess of 10 percent prior to June 13, 2013 for chronic left shoulder strain with degenerative joint disease. 3. Entitlement to a rating in excess of 20 percent on and after June 13, 2013 for chronic left shoulder strain with degenerative joint disease. REPRESENTATION The Veteran is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from September 1977 to September 1981. The issue of entitlement to service connection for a right shoulder disability, to include as secondary to chronic left shoulder strain with degenerative joint disease, comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Reno, Nevada. During the pendency of this appeal, jurisdiction of the Veteran's claims file was transferred to the RO in Montgomery, Alabama. At the time of the September 2003 rating decision, the issue of entitlement to service connection for a right shoulder disability was adjudicated as an aspect of the Veteran's claim to reopen the issue of entitlement to service connection for bilateral shoulder disability. During the pendency of this appeal, the Veteran's claim to reopen the issue of entitlement to service connection for bilateral shoulder disability was bifurcated. Specifically, in a June 2005 rating decision, the claim of entitlement to service connection for a left shoulder disability was reopened, service connection was granted for chronic left shoulder strain with degenerative joint disease, and a 10 percent rating was assigned thereto, effective April 8, 2003. The Veteran perfected an appeal of the residual claim to reopen the issue of entitlement to service connection for a right shoulder disability. In a November 2006 decision, the Board denied reopening the Veteran's claim of entitlement to service connection for a right shoulder disability. The Veteran subsequently appealed the Board's November 2006 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2008 memorandum decision, the Court vacated the Board's November 2006 decision and remanded the Veteran's claim to the Board for additional development consistent with Kent v. Nicholson, 20 Vet. App. 1 (2006). In June 2009, the Board remanded the Veteran's claim to reopen the issue of entitlement to service connection for a right shoulder disability for additional development in order to comply with the Court's June 2008 memorandum decision. Eventually, the Board reopened the Veteran's claim of entitlement to service connection for a right shoulder disability in an August 2010 decision, at which time the Board also remanded the issue of entitlement to service connection for a right shoulder disability for additional development. Meanwhile, the Veteran perfected an appeal of the June 2005 rating decision, seeking an initial rating in excess of 10 percent for chronic left shoulder strain with degenerative joint disease. In May 2013, the issues of entitlement to service connection for a right shoulder disability and entitlement to an initial rating in excess of 10 percent for chronic left shoulder strain with degenerative joint disease came before the Board. At that time, the Board remanded both issues for additional development. While these claims were in remand status, in a July 2013 rating decision, the rating assigned to the Veteran's service-connected chronic left shoulder strain with degenerative joint disease was increased to 20 percent, effective June 13, 2013. After the Veteran's claims (as captioned above) were addressed in a July 2013 supplemental statement of the case, they were returned to the Board for further appellate review. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the May 2013 remand, the Board requested the RO to provide the Veteran the opportunity to identify all of the VA and non-VA medical care providers who have treated the Veteran for a left shoulder disability. Then, the RO was requested to undertake efforts to obtain copies of the treatment records identified by the Veteran, including any private treatment records that were not already associated with the claims file. In July 2013, the Veteran submitted a VA Form 21-4142 Authorization and Consent to Information to VA wherein he indicated that he was treated for a shoulder disability (left versus right was not specified) at the Bryant Whitfield Hospital (a private hospital) in Demopolis, Alabama. Subsequent to the submission of the July 2013 form, the Board found no indication that the private records identified by the Veteran had already been associated with the claims file. Further, the Board found no indication that the RO undertook efforts to obtain the Veteran's private treatment records from Bryant Whitfield Hospital. Moreover, the Veteran did not independently submit the identified private treatment records. As such, the Board finds that a remand is required in order for the RO to attempt to obtain the Veteran's treatment records from Bryant Whitfield Hospital. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance). Additionally, in the May 2013 remand, the Board directed the RO to provide the Veteran with a VA examination in order to ascertain whether his right shoulder disability was etiologically related to his active duty service. While his claim was in remand status, the Veteran was provided a VA examination in June 2013. The June 2013 VA examiner rendered a negative etiological opinion that was limited to assessing the relationship between the Veteran's right shoulder disability and his active duty. In a September 2013 brief, the Veteran's representative asserted that the Veteran's claim of entitlement to service connection for a right shoulder disability should also be considered on a secondary basis, specifically with respect to the Veteran's service-connected chronic left shoulder strain with degenerative joint disease. Consequently, the Board finds that a remand is necessary in order to obtain a supplemental opinion from the June 2013 VA examiner. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (holding that the Board commits error only in failing to discuss a theory of entitlement that was raised either by the veteran or by the evidence of record; Board is not required to sua sponte raise and reject "all possible" theories of entitlement in order to render a valid opinion). Accordingly, the case is REMANDED for the following action: 1. The RO should undertake all reasonable efforts to obtain the Veteran's relevant treatment records from Bryant Whitfield Hospital located in Demopolis, Alabama. If, after making reasonable efforts to obtain the named records, the Board is unable to secure the same, the Board must notify the Veteran and his representative and (a) identify the specific records the Board was unable to obtain (b) briefly explain the efforts that the RO made to obtain those records (c) describe any further action to be taken by the Board with respect to the claims and (d) notify the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. The RO must then request that the June 2013 VA examiner (or appropriate substitute in the event that the June 2013 VA examiner is not available) provide a supplemental opinion. The Veteran's claims file must be made available to and contemporaneously reviewed by the examiner. The examiner must then provide an opinion as whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's right shoulder disability was: (a) incurred in or due to his active duty; AND/OR (b) was caused or aggravated by his service-connected chronic left shoulder strain with degenerative joint disease. In so doing, the examiner should consider the following explanation provided by the examiner in the June 2013 VA examination regarding symptoms and limitation regarding the Veteran's service-connected left shoulder disability: Evidence based literature supports that individuals are highly dependent on the shoulder for many activities, overuse of the muscles can lead to tears, with the vast majority again occurring in the supraspinatus tendon. Supraspinatus tendon tears are common and often propagate into larger tears that include the infraspinatus tendon, resulting in loss of function and increased pain. Vet[eran]'s subjective symptoms of pain, limited motion and limited ability to lift heavy objects are in line with evidence based literature symptoms that include: pain and tenderness in the shoulder, especially when reaching overhead, reaching behind the back, lifting, pulling or sleeping on the affected side, shoulder weakness, loss of shoulder range of motion, and the inclination to keep the shoulder inactive The examiner is advised that "aggravation" is defined as the worsening beyond the natural course of the disability. A complete rationale for all opinions must be provided. 3. Thereafter, the RO must re-adjudicate the issues on appeal, to include any relevant evidence submitted since the July 2013 supplemental statement of the case. If any benefit remains denied, the RO must issue the Veteran and his representative a supplemental statement of the case and provide them the opportunity to respond. The case must then be returned to the Board for appellate review. 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). These claims 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). _________________________________________________ L. M. BARNARD Acting 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).