Citation Nr: 1342827 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-22 323A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for right rotator cuff tear with repair (also referred to as right shoulder disability), as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran had active service from December 1989 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the February 2008 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which in pertinent part, denied service connection for the right rotator cuff tear with repair. During the current appeal, and specifically in April 2013, the Veteran also testified at a Travel Board hearing at the RO. A transcript of the testimony has been associated with the appellant's Virtual VA claims folder. For the reasons set forth below, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim for service connection for right rotator cuff tear with repair. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran is currently service connected for residuals of right knee injury and contends that his current right shoulder disability was caused by his right knee disability. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability either (a) was caused by or (b) is aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). Additionally, the United States Court of Appeals for Veterans Claims (Court) has indicated what supporting evidence is required for secondary service connection when the proximate cause of a second disability is distanced from a service-connected disability by an intercurrent event. First, a Veteran must submit supporting lay or medical evidence that his service-connected disability caused the intercurrent event that is alleged to have caused the disability at issue. Second, a Veteran must submit medical evidence that the intercurrent event caused the disability for which he claims secondary service- connection. See Reiber v. Brown, 7 Vet. App. 513, 516 (1995); Schroeder v. Brown, 6 Vet. App. 220, 223 (1994). In claims based on 38 C.F.R. § 3.310, medical evidence is required to provide a nexus between a service connected disability and the currently diagnosed disorder. See Schroeder v. Brown, 6 Vet. App. 220 (1994). Therefore, the second question goes to medical causation, and medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). During his April 2013 hearing, the Veteran testified that in June 2007, while hanging a "tongue in groove for [his] ceiling" he climbed onto a ladder and his right knee buckled and gave way causing him to fall. According to the Veteran, when he reached back with his right hand to try to support and stabilize himself, he felt something tear in his right shoulder. See April 2013 Hearing Transcript (T.), p. 5. VA treatment records dated in June 2007 reflect that the Veteran presented with complaints of right shoulder pain after slipping on a ladder two days prior. He underwent a magnetic resonance imaging (MRI) of the right shoulder in July 2007, the results of which revealed a "[f]ull-thickness tear of the subscapularis muscle with retraction and fatty infiltration of the muscle belly" and "[m]oderate bursal fraying of the anterior aspect of distal supraspinatus tendon at the footprint with mild tendonitis at the footprint and in the central and posterior portions of the supraspinatus tendon." See July 2007 VA MRI report. According to the Veteran, he began receiving rehabilitative therapy to help treat and alleviate his right shoulder symptoms soon after his injury, and he subsequently underwent several surgical procedures on his right shoulder, to include an arthroscopic decompression of the subcaracoid space, arthroscopic rotator cuff repair and biceps tenodesis, in October 2007. See October 2007 operative report. The Veteran was afforded a VA orthopedic examination in January 2008, at which time the VA examiner evaluated the severity of his right knee disability and acknowledged the Veteran's complaints of giving way and pain in his right knee. The VA examiner also interviewed the Veteran regarding his right shoulder condition and noted that the Veteran attributed his right shoulder disability to his June 2007 fall when his right knee gave out from under him while he was climbing a ladder. According to the Veteran, while holding onto the ladder for support, he felt a ligament tear in his right shoulder. Based on her evaluation of the Veteran, the VA examiner diagnosed the Veteran with having status post surgical ligament tear repair of the right shoulder. When asked whether the Veteran's right shoulder disability was related to his service-connected right knee disability, the examiner determined that she could not resolve this issue without resorting to mere speculation. In so stating, the examiner noted that there was insufficient information in the medical record to make a determination as to whether the right shoulder condition was connected to the service-connected right knee disability. According to the examiner, although the Veteran exhibited significant disability of his right shoulder, "at this time one would have to resort to speculation as to the cause of his right shoulder condition." VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA undertakes the effort to provide a veteran with a medical examination, it must ensure that such examination is an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Unfortunately, the Board does not find the January 2008 VA medical opinion to be adequate. In this regard, the Board notes that the examiner did not provide an explanation to support the conclusion that she could not resolve the issue of the etiology of the Veteran's diagnosed shoulder disability without resorting to speculation. Although the examiner explained that there was insufficient information in the medical record to make a determination regarding the etiology of the right shoulder condition, she did not identify what additional evidentiary development might have led to a non-speculative opinion, or offer any other explanation for her inability to provide a nexus opinion; nor did she identify any further relevant information that should be obtained to facilitate a non-speculative determination. See Jones v. Shinseki, 23 Vet. App. 383, 389 (2010). In this regard, the Board notes that any medical opinion, including one that states that no conclusion can be reached without resorting to speculation, must be based on sufficient facts and data. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court found that a medical opinion that only contains data and conclusions, and is not supported by reasons or rationale is accorded no probative weight. See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). In this case, the Board finds that since the January 2008 VA examiner did not provide an adequate explanation as to why she was unable to provide a definitive conclusion as to whether the Veteran's right shoulder disability is related to his service-connected right knee disability, the issue must be remanded so that another examination and nexus opinion can be obtained. Specifically, the examiner must include well-reasoned medical opinions addressing the nature and etiology of the Veteran's diagnosed right shoulder disability. The examiner's opinion must be based upon consideration of the Veteran's documented medical history and assertions through review of the claims file and must include a clear and thorough explanation for all conclusions reached. 38 U.S.C.A. § 5103A. If, after further examination, the examiner remains unable to render an etiological opinion without resort to speculation, the examiner should clearly identify precisely what facts could not be determined, including commenting on whether the inability to provide an opinion is due to a lack of information that could only have been collected at the time of the June 2007 incident or soon thereafter. In addition, during his hearing the Veteran testified that he initially received treatment for his right shoulder disability through his private physician, H.R., D.O., and this physician related the Veteran's right shoulder condition to his service-connected right knee disability. See T., pp. 5-6. A review of the evidence of record reflects that the only medical treatment records issued by Dr. R., and which are associated with the claims file, are the September 2007 MRI report and the October 2007 operative report. There are no additional treatment records, clinical notes, or progress reports from Dr. R. associated with the claims file. Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to make a reasonable effort to obtain any identified private treatment records. See 38 C.F.R. § 3.159(c)(1). The Veteran also testified that at present he was exclusively receiving medical treatment from the VA. The most recent records of treatment that the Veteran has received at the West Palm Beach VA medical center (VAMC) are dated in June 2010. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). As records in the possession of the VA are deemed to be constructively of record, updated records from June 2010 should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Request records of relevant treatment that the Veteran may have received for his right knee and his right shoulder disabilities at the West Palm Beach VAMC since June 2010. Copies of such records which are available should be associated with the claims folder. 2. Contact the Veteran and instruct him to complete a release form authorizing VA to request his private medical records from Dr. Routman. The Veteran should provide the full address for Dr. Routman (if it is different from the previous address provided) as well as the specific dates in which he received treatment from this physician. Copies of all such available records should be associated with the claims folder. If any records are not obtained, inform the Veteran and provide him an opportunity to submit the records. Any negative responses should be properly annotated into the record. If these records do not exist, please ensure that the designated private treatment facility and/or private treatment provider clearly states as such in its response. 3. Once these records have been obtained and associated with the claims folder, schedule the Veteran for another VA orthopedic examination to determine the nature and etiology of his right shoulder disability. The claims folder, a copy of this remand, and any medical records scanned into the Virtual VA claims processing system must be made available to, and reviewed by, the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. The examiner should specifically take into consideration VA treatment records dated from June 2007 to July 2007 which document the Veteran's complaints of right shoulder pain soon after his June 2007 fall. Following a review of the record and an examination of the Veteran, the examiner should specify the nature of any current right shoulder disability and provide diagnoses for all identified disabilities. Then, the examiner should express an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right shoulder disability was caused or aggravated (permanently worsened beyond normal progression) by his service-connected right knee disability, to include his June 2007 fall wherein his right knee reportedly buckled and gave way while he was climbing a ladder. If the examiner finds that the Veteran's right knee disability aggravated his right shoulder disability, she or he must discuss the baseline level of disability prior to aggravation and what permanent measurable degree of the right shoulder disability is due to the right knee disability. 3. After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the issue on appeal. If any benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. No action is required of the Veteran until she is notified; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). 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 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. 2013). _________________________________________________ J. A. MARKEY 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) (2013).