Citation Nr: 1333852 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 05-01 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a right shoulder disorder. 3. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1975 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2006, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Board remanded the case in November 2007 to obtain additional VA treatment records and for corrective VA development notice. The Board reopened the issue of entitlement to service connection for a low back disorder in November 2010 and remanded the issues on appeal for additional development. In a decision dated in July 2012, the Board, in pertinent part, denied service connection for the chronic disabilities of the shoulders and back. The Veteran appealed that part of the decision to the United States Court of Appeals for Veterans Claims (the Court). In an Order dated on July 2, 2013, the Court vacated that portion of the Board's July 2012 decision that denied service connection for the chronic disabilities of the shoulders and back; and remanded the issues back to the Board for development consistent with the Court's Order. In order to comply with the Joint Motion for Partial Remand (JMPR), 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 In regard to the claim for service connection for a low back disability, the parties to the JMPR noted that the VA examiner that conducted a February 2011 examination, when providing a negative opinion, in part, relied on a radiology report that belonged to another person. Secondly, the VA examiner, in referring to the medical history, also stated that he did not find that the Veteran experienced any ongoing problems related to his back during active duty. However, the parties pointed out that during his active duty, the Veteran was placed on a light duty regimen and was not removed from it. See April 10 and April 15, 1978 service treatment records. In light of these discrepancies, this examination as well as the opinion was considered inadequate for rating purposes. It was agreed that another VA examination and opinion were needed. Concerning the claims for service connection for left and right shoulder disabilities, the parties noted that the Board failed to consider the fact that the Veteran received treatment for back and right arm pain in March 1978 when it concluded that the Veteran's report of injury to the shoulders was not credible. Therefore, an examination should be conducted and an opinion provided which takes into consideration this reported injury to the right arm. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination in the appropriate specialty to determine the nature and etiology of his current diagnosed disorders of the low back and bilateral shoulders, to include degenerative joint disease, and opine as to whether any of the currently-diagnosed disorder(s) is/are etiologically-related to his period of active service. After a review of the claims folder, to include the Veteran's statements in support of his claim as well as service treatment records documenting treatment following an in-service accident, the examiner should determine whether it is at least as likely as not that any currently-diagnosed low back and/or bilateral shoulder disorders are related to his period of active service. In this regard, the examiner should specifically comment on the Veteran's competent statements regarding the in-service injuries; the Veteran's statements of symptoms in service; and the Veteran's statements of continuous symptoms after service. Dalton v. Nicholson, 21 Vet. App. 23. The examiner should not rely on the misfiled January 14, 2004, radiology report from Self Regional Healthcare that refers to an individual other than the Veteran. The examiner should consider April 10, 1978 and April 15, 1978 service treatment records reflecting that the Veteran was placed on a light duty regimen with no indication that he was removed from it; and a March 1978 service treatment record showing that the Veteran was seen for pain in the back and right arm while on active duty due to lifting a fuel tank. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. A complete rationale for any opinion expressed should be provided. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 2. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If any claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran 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). These claims 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). _________________________________________________ S. L. Kennedy 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).