Citation Nr: 1337151 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 09-18 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to compensation pursuant to the provisions of 38 U.S.C. § 1151 for the residuals of surgery to the right shoulder for a rotator cuff tear with status post compression. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active service from September 1973 to June 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Nashville, Tennessee. In July 2010, a hearing on appeal was held in Washington, DC, before the undersigned, who is the Veterans Law Judge designated by the Chairman to conduct that hearing. 38 U.S.C.A. § 7107(c) (West 2002). A transcript of the hearing has been produced and has been included in the claims folder for review. In a December 2010 decision, the Board reopened and then remanded these issues for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). 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 Board finds that more development is necessary prior to final adjudication of the claims on appeal. In the December 2010 decision, the Board remanded the issue of entitlement to compensation pursuant to the provisions of 38 U.S.C. § 1151 for the residuals of surgery to the right shoulder for a rotator cuff tear with status post compression for further development. This development included affording the Veteran a VA examination to determine whether the Veteran's right shoulder surgery was appropriate, and whether the aftercare provided was careless, negligent, lacking of proper skill, erroneous, or in some manner faulty, or that the possible failure of the shoulder (as suggested by the Veteran) was "not reasonably foreseeable". See 38 U.S.C.A. § 1151 (West 2002) and 38 C.F.R. § 3.358 (2012). Per the December 2010 Board instructions, the Veteran underwent a VA examination in February 2011. The examiner noted that the Veteran appeared to have a massive rotator cuff repair performed on December 12, 2002 which was unsuccessful. The treating doctor indicated that the Veteran would need a latissimus dorsi transfer to repair function to his right shoulder but the Veteran refused this procedure and instead underwent physical therapy which did not help. The examiner opined that he did not feel that the Veteran's surgical treatment was negligent. He concluded that the surgery on the Veteran's right shoulder was a failed attempt, but there was no negligence, carelessness or errors made. While the February 2011 examiner addressed the Veteran's December 2002 surgery and determined that there was no negligence, carelessness or errors made, he failed to provide an opinion as to whether the Veteran's post-surgery experiences were the "necessary consequences" certain to result from, or were intended to result from the medical and surgical treatment administered by the VA hospital personnel. Additionally, the opinion did not specifically address if the treatment of care after the surgery was careless negligent, indicative of medical personnel lacking proper skill, an error in judgment or a similar instance of fault. Notably, in a September 2013 Informal Hearing Presentation, the Veteran's representative noted that while the February 2011 examiner found that there was no negligence, carelessness or error made during the surgery, the VA examiner did not provide an opinion on whether any aspect of the Veteran's care (to include aftercare) involved carelessness, negligence, care from medical personnel lacking proper skill, an error in judgment, or a similar instance of fault resulting in additional disability to the Veteran's right shoulder. Accordingly, the February 2011 examination report does not comply with the Board's December 2010 instructions. The United States Court of Appeals for Veterans Claims has held that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). On remand, the February 2011 VA examiner should amend his examination report in accordance with the Board's December 2011 directives cited herein to specifically address whether any aspect of the Veteran's care (to include aftercare) involved carelessness, negligence, care from medical personnel lacking proper skill, an error in judgment, or a similar instance of fault resulting in additional disability to the Veteran's right shoulder. Regarding the Veteran's claim for service connection for a low back disability, the Board notes that the Veteran has a current diagnosis of degenerative disc disease of the lumbar spine. For a chronic disease, such as arthritis that was not shown during service, generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3 .303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition listed under 38 C.F.R. § 3.309(a) in service or during an applicable presumption period and still has such condition. See Id. As noted above, in the December 2010 decision, the Board remanded the issue of entitlement to service connection for further development. This development included affording the Veteran a VA examination to determine whether he suffered from the residuals of a lower back injury or just a back disability, and if so, whether it was at least as likely as not that any found disability of the lower back was due to his military service or any incident therein. Per the December 2010 Board instructions, the Veteran underwent a VA examination in February 2011. The VA examiner opined that it was less likely than not that the Veteran's current back disability was caused by or a result of a back injury and pain while in military service. The examiner noted that only one service treatment report mentioned back pain and there was no record of the Veteran seeking or receiving medical attention for his back pain for many years after leaving the service. While the February 2011 examiner addressed whether the Veteran's current back disability was related to his in-service back injury, he failed to specifically address the Veteran's reports of continuity of symptoms since service. Notably, the December 2010 remand specifically instructed the examiner to discuss the Veteran's report of continuity of symptoms since service. The Board also notes that a July 2012 VA treatment note subsequent to the February 2011 VA examination indicated that the Veteran reported that he had intermittent back pain for several years since his in-service injury which for the past 10 to 12 years became constant pain. Additionally, in a September 2013 Informal Hearing Presentation, the Veteran's representative noted the Veteran testified at his July 2010 hearing that he had experienced back pain from his time in service to the present. The Veteran's representative also argued that the February 2011 VA examiner failed to address the Veteran's report of continuity of symptoms since service as was instructed by the December 2010 Board remand. Accordingly, the February 2011 examination report does not comply with the Board's December 2010 instructions. Given the above opinion, and lack of discussion regarding the Veteran's report of continuity of symptoms since service, the Board finds that the examiner did not comply with the orders of the prior remand and the claim must be remanded for full compliance. See Stegall, supra. On remand, the February 2011 VA examiner should amend his examination report in accordance with the Board's December 2010 directives cited herein to specifically address the etiology of the Veteran's current back disability and the Veteran's report of continuity of symptoms since service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should arrange for the same examiner who conducted the February 2011 right shoulder examination, if possible, to review the claims folder and determine whether any of the actions accomplished by VA personnel, either during the surgical procedure or afterwards, was careless, negligent, indicative of medical personnel lacking proper skill, an error in judgment or a similar instance of fault. The examiner should specifically comment on whether the Veteran's post-surgery experiences and the purported failure of the surgery were the "necessary consequences" certain to result from, or were intended to result from the medical and surgical treatment administered by the VA hospital personnel. The complete rationale for all opinions expressed must be provided and the examiners should discuss any contrary opinions. 2. The RO should arrange for the same examiner who conducted the February 2011 spinal examination, if possible, to review the claims folder and determine whether it is at least as likely as not that any disability of the lower back is due to his military service or any incident therein. In accomplishing these tasks, the appropriate examiner must discuss the Veteran's report of continuity of symptoms since service. 3. Ensure that the examination reports comply with this remand and answers the questions presented herein. If any report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. 4. Then, perform any additional development necessary, and then readjudicate the Veteran's claims. If his claims remain denied, he should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant 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). This claim 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). _________________________________________________ C. TRUEBA 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).