Citation Nr: 1337642 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 05-35 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected lumbosacral strain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1981 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board, in pertinent part, remanded the issue on appeal for additional development in March 2009, June 2011, October 2012, and June 2013. The issue of entitlement to an increased rating for lumbosacral strain has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The issues of entitlement to service connection for depression secondary to service-connected disability, entitlement to service connection for gastroesophageal reflux disease and migraines secondary to service-connected disability, and entitlement to TDIU were previously noted to have been raised by the Board and have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. The appellant has the right to submit additional evidence and argument This appeal was processed using the VBMS and Virtual VA paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This 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 Although this issue has been previously remanded, the Board finds it must again be remanded for an adequate decision. The matter was most recently remanded in June 2013 for an opinion addressing whether the Veteran had a present right shoulder disorder secondary to her service-connected lumbosacral strain. The examiner was instructed to provide complete a rationale for all conclusions. Although an opinion was obtained in July 2013, the examiner provided no rational for the provided conclusion. The United States Court of Appeals for Veterans Claims has held that a remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2012). When VA undertakes to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate. The service connection requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, it is significant to note that the Board has previously identified conflicting medical evidence as to the issue on appeal and requested additional medical opinions to reconcile this evidence. VA treatment records dated in January 2004 include a statement from A.J.H., M.D., noting that based upon a review of service treatment records it was believed that the Veteran's right shoulder pain began in service. No specific service records were identified. A March 2004 X-ray examination revealed mild narrowing of the acromioclavicular joint with mild osteophytic spurring and mild degenerative change of the glenoid labrum. VA examination in August 2011, however, revealed a normal right shoulder with no acute of degenerative findings upon X-ray examination. The record also shows that mail recently sent to the Veteran has been returned as undeliverable and that VA treatment records indicate she may have moved. In light of the inconsistent evidence of record, the Board finds that another examination is required for an adequate appellate review. Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts should be taken to verify the Veteran's address of record. 2. Request that the appellant provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the issue on appeal. After the appellant has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile. All efforts to procure records should be documented in the file. If any records identified by the appellant cannot be obtained he should be provided a notice to (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) explain that she is ultimately responsible for providing the evidence. 3. Following completion of the above, schedule the appellant for an appropriate VA examination for an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a present right shoulder disorder was incurred as a result of service or a service-connected lumbosacral strain. A current X-ray examination must be conducted and compared to the March 2004 and August 2011 studies, if possible. Opinions should be provided based on the results of examination, a review of the medical evidence of record, to include service treatment records, and sound medical principles. All examination findings, with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. After completion of the above and any additional development deemed necessary, the issue on appeal should be readjudicated with consideration of all evidence of record. If the benefit sought remains denied, the appellant and her representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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). _________________________________________________ F. JUDGE FLOWERS 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).