Citation Nr: 1454605 Decision Date: 12/11/14 Archive Date: 12/17/14 DOCKET NO. 12-24 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for left shoulder degenerative arthritis and rotator cuff tear (also referred to his left shoulder disability). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Ralph J. Bratch, Esq. ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran had active service from September 1982 to July 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from the October 2010 and January 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The October 2010 rating decision denied the Veteran's petition to reopen his claim for service connection for a left shoulder disability, and the January 2011 rating decision denied the Veterans claim for entitlement to a TDIU. Earlier during the appeal, the Veteran was represented by Javier A. Centonzio, Attorney-at-law. In an October 2014 VA Form 21-22a, the Veteran appointed the Ralph J. Bratch as his representative, thereby revoking the earlier power of attorney. See 38 C.F.R. § 14.631(f)(1). To establish jurisdiction over the issue of service connection for left shoulder disability, the Board must first consider whether new and material evidence has been received to reopen the claim. See 38 U.S.C.A. §§ 5108, 7105 (West 2002). The Board must proceed in this fashion regardless of the RO's actions. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92. As discussed fully under the analysis section, the Board finds that new and material evidence sufficient to reopen the previously denied claim of entitlement to service connection for left shoulder disability has been received. Accordingly, the Board is granting this portion of the Veteran's claim. The underlying de novo claim for service connection for left shoulder disability is addressed in the REMAND portion of the decision below and is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An unappealed November 2005 rating decision denied service connection for a left shoulder injury on the basis that the evidence did not show that the shoulder disability began in or was caused by military service, or had existed continuously since separation. 2. Additional evidence received since the November 2005 decision, which denied entitlement to service connection for left shoulder disability, is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim of service connection for left shoulder disability. 3. The Veteran is currently assigned a 20 percent disability rating for his right shoulder disability; a 10 percent disability rating for his degenerative arthritis and disc disease of the thoracolumbar spine; a 10 percent disability rating for cervical spine degenerative arthritis and disc disease; a 10 percent disability rating for carpal tunnel syndrome and cervical radiculopathy of the left upper extremity; a 10 percent disability rating for carpal tunnel syndrome and cervical radiculopathy of the right upper extremity; a 10 percent disability rating for left lower extremity neuropathy associated with degenerative arthritis and disc disease of the thoracolumbar spine; a 10 percent disability rating for right lower extremity neuropathy associated with cervical spine degenerative arthritis and disc disease; and a noncompensable rating for numbness of the hands; the combined disability rating is 60 percent. 4. As evidence of the Veteran's potential unemployability is of record, and since he does not meet the schedular criteria for a TDIU rating, the matter should be referred to the Director, Compensation and Pension Services, for extraschedular consideration. CONCLUSIONS OF LAW 1. The November 2005 rating decision which denied service connection for left shoulder disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302, 20.1103 (2014). 2. The evidence received subsequent to the November 2005 rating decision is new and material, and the previously denied claim for service connection for left shoulder disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2014). 3. The criteria for the submission of a claim for TDIU on an extraschedular basis to the Director of Compensation and Pension Services have been met. 38 C.F.R. § 4.16(b) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2014); 38 C.F.R. § 3.159(b) (2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 73 Fed. Reg. 23,353-56 (Apr. 30, 2008). Additionally, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim, and VA must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The duty to notify requires, in the context of a claim to reopen, that the Secretary look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Here, however, the Board is reopening the Veteran's previously denied claim for service connection for the left shoulder disability. Thus, any defect in the notice letter concerning the evidence needed to reopen the claim-or, indeed, any deficiency in VA's compliance with its duty to assist the Veteran-cannot be prejudicial to him because the Board is granting in full this aspect of his appeal. Thus, the Board concludes that the provisions of the VCAA and the current laws and regulations as they pertain to new and material evidence have been complied with, and that a defect, if any, in providing notice and assistance to the Veteran was at worst harmless error in that it did not affect the essential fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005); Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Also, with respect to the Veteran's claim for entitlement to a TDIU, there is no need to undertake any review of compliance with the VCAA and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the benefit sought by the Veteran is being granted (in part anyway) by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). II. Analysis A. New and Material Evidence The Veteran attributes his current left shoulder disability to a motor vehicle accident which occurred during his period of service. In this regard, the Board notes that service connection for this disorder was first denied by the RO in the November 2005 rating decision. The Veteran was notified of this decision and of his appellate rights; however, he did not submit a notice of disagreement. In general, rating decisions that are not timely appealed become final. See 38 U.S.C.A. § 38 U.S.C.A. § 7105(d)(3). The Veteran, however, now seeks to reopen his claim. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim that has been disallowed. 38 U.S.C.A. §5108; 38 C.F.R. § 3.156(a). In August 2010, the Veteran requested that his claim for service connection for a left shoulder injury be reopened. In order to reopen a claim that has been denied by a final decision, new and material evidence must be received. 38 U.S.C.A. § 5108. For applications to reopen filed after August 29, 2001, as was the application to reopen in this case, new and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness.). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4) , which "does not require new and material evidence as to each previously unproven element of a claim." Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." The evidence associated with the Veteran's claims file at the time of the November 2005 rating decision included the Veteran's DD 214 and service treatment records; his March 2005 application seeking service-connected compensation for his claimed disorder; and a March 2005 statement describing the circumstances of his in-service injury. Turning to the service treatment records, a June 1984 Emergency Care and Treatment report reflects that the Veteran was taken to the military hospital after being involved in a motor vehicle accident wherein the Jeep he was riding in rolled over, and caused the Veteran to be pinned underneath until his fellow soldiers were able to lift it off of him. The Veteran reported to have, and was treated for, upper and lower back pain during this treatment visit, and was assessed with having a soft tissue injury. A subsequent treatment visit dated on June 22, 1984 reflects that the Veteran presented with complaints of numbness in the right hand and forearm. Physical examination of the left shoulder was benign and negative for any abnormalities. The Veteran presented at the military clinic once again on June 25, 1984, at which time he provided his military history, and reported to have sustained a contusion to his right upper back after being pinned underneath a Jeep when it rolled over. The Veteran reported to experience pain and decreased sensation in the right hand, as well as shoulder pain secondary to his June 1984 motor vehicle accident. On physical examination, the treatment provider noted that the shoulder was painful during flexion or abduction greater than 90 degrees, and assessed him with having pain in the shoulder during flexion and abduction above 90 degrees. The treatment provider also recommended that the Veteran consult with a physical therapist concerning his shoulder pain. An October 1984 physical therapy consultation report reflects that the Veteran was seen with complaints of continuing upper back secondary to his June 1984 motor vehicle accident. In the November 2005 rating decision, the RO denied the Veteran's claim for service connection for the left shoulder disability, on the basis that there was no evidence the claimed condition existed, and the evidence did not show that the left shoulder injury occurred in, or was caused by service. The evidence associated with the Veteran's claims file subsequent to the November 2005 rating decision includes, but is not limited to, the December 2005 VA examination report; VA treatment records generated at the Boise VA Medical Center (VAMC) and dated from April 2010 to November 2010; the October 2010 Evaluation form issued at the Boise Shoulder clinic; the December 2010 VA examination report; lay assertions submitted by the Veteran's family members and colleagues; and the Veteran's own lay assertions. VA treatment records dated in June and July 2010 reflect that the Veteran presented at this facility with complaints of ongoing bilateral shoulder and neck pain, which reportedly began in 1984 after his in-service motor vehicle accident. During these visits, the Veteran reported that along with symptoms of pain in his neck, lower back, right shoulder and right upper extremity, he has experienced pain in his left shoulder since his in-service accident. During a November 2010 VA primary care visit, the VA physician, G.L, M.D., took note of the Veteran's medical history, and noted that the Veteran had bilateral rotator cuff tears status-post tear repair two weeks prior and currently presented with ongoing pain and need for physical therapy. Based on his evaluation of the Veteran, the Dr. L. assessed the Veteran with "right and left rotator cuff tears consistent and most likely the result of his 1984 crush injury during military activity." Also, at the December 2010 VA examination, the Veteran underwent an x-ray of his left shoulder, the results of which revealed moderate degenerative changes about the inferior glenohumeral joint with moderate irregularity of the acromioclavicular (AC) articulation. It was further noted that the AC joint may be related to an old injury. This evidence is new, in that it was not previously of record. The Board finds that the November 2010 letter provides further evidence concerning whether the Veteran's left shoulder disability is related to his in-service motor vehicle accident, and addresses the possibility of an etiological link between the Veteran's left shoulder disability and service. In light of the fact that the RO, in the November 2005 rating decision, denied the claim because the evidence did not reflect that a left shoulder disability existed, and that said disability was incurred in service, this new evidence relates to an unestablished fact necessary to substantiate the claim. Thus, the Board finds that new and material evidence has been presented to reopen the previously denied claim for service connection for a left shoulder disability. This aspect of his appeal is, therefore, granted. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the underlying de novo claim for service connection for this disorder can be addressed. B. TDIU In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). The Veteran is service connected for his right shoulder disability, evaluated as 20 percent disabling; degenerative arthritis and disc disease of the thoracolumbar spine, evaluated as 10 percent disabling; cervical spine degenerative arthritis and disc disease, evaluated as 10 percent disabling; carpal tunnel syndrome and cervical radiculopathy of the left upper extremity, evaluated as 10 percent disabling; carpal tunnel syndrome and cervical radiculopathy of the right upper extremity, evaluated as 10 percent disabling; left lower extremity neuropathy associated with degenerative arthritis and disc disease of the thoracolumbar spine, evaluated as 10 percent disabling; right lower extremity neuropathy associated with cervical spine degenerative arthritis and disc disease, evaluated as 10 percent disabling, and numbness of the hands, evaluated as noncompensably disabling. The current combined evaluation for the Veteran's service-connected disabilities is 60 percent. See 38 C.F.R. § 4.25 (2014). Thus, the Veteran does not meet the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). Nonetheless, entitlement to the benefit on an extraschedular basis may be considered by the Director of the Compensation and Pension Service when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, even though percentage requirements are not met, with consideration given to the Veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). In determining whether the Veteran is entitled to a TDIU rating, neither nonservice-connected disabilities or advancing age may be considered. 38 C.F.R. § 4.19. The Veteran contends that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. In his September 2010 application for increased compensation based on unemployability, the Veteran provided his employment history, and noted that his most recent employment included working as a salesman and a telemarketer for various companies in July and August 2010. In an October 2010 statement, the Veteran's former colleague, C.H., introduced himself as the Veteran's business partner and explained that he and the Veteran had co-founded a multi-media company together. According to C.H., he first met the Veteran while working on a fabrication project together in 2008. C.H. explained that their job involved a great deal of manual labor, and required heavy lifting and working in awkward positions in tight work spaces. C.H. recalled that the Veteran was often unable to fulfill these physically demanding tasks due to his limitations, and was thus transferred to the least demanding physical job that was predominantly a parts support position working to supply parts and tools to the installers. According to C.H., he and the Veteran co-founded a multi-media company together because the Veteran was unable to work at normal labor-type position, and further unable to work a traditional 8 hour work day. C.H. noted that as of 2010, the Veteran could only work a 3-4 hour work day, and currently worked a modified workday and schedule tailored to his specific needs during that day. The Veteran was afforded a VA examination in December 2010, at which time he underwent a physical examination of his service-connected and non service-connected disabilities. The examiner noted that the Veteran used to work in sales and construction, that he was currently not employed as a result of his disabilities, and that he was a part owner of a media company. Based on his evaluation of the Veteran, the examiner determined that the Veteran was essentially unemployable due to a combination of his service-connected and non service-connected disabilities. According to the examiner, the Veteran's service-connected recurrent thoracolumbar strain (which had progressed to degenerative arthritis and degenerative disc disease), his bilateral carpal tunnel syndrome, his right shoulder disability, and cervical spine disability do impact his ability to secure and maintain substantially gainful employment. [The Board notes that at the time of this examination, the Veteran was not yet service-connected for his cervical spine disability or his bilateral carpal tunnel syndrome.] The examiner also noted that the Veteran's current non-service-connected conditions, to include his left shoulder rotator cuff disease (which had progressed to degenerative arthritis), his cervical spine degenerative arthritis, and his bilateral lower extremity neuropathy had resulted in limited range of motion and pain, as well as an inability to lift heavy objects - all of which would limit the Veteran's ability to secure and maintain substantially gainful employment requiring long periods of standing, walking, sitting, running, climbing, pushing and pulling. In a subsequent opinion also dated in December 2010, the VA examiner related the Veteran's bilateral carpal tunnel syndrome, his cervical spine disability, and his bilateral lower extremity neuropathy to the Veteran's in-service motor vehicle accident in service, and further determined that the Veteran's diagnosed conditions are sufficient to render him unable to obtain and maintain employment in the entire realm of the work force. In a January 2011 decision, the Social Security Administration (SSA) granted the Veteran's request for disability benefits, based in part, on a number of his service-connected disabilities, to include his bilateral lower extremity peripheral sensory neuropathy; his C6 radiculopathy; his moderate to severe mid and lower cervical degenerative disc disease; his osteophytic disc bulging at C4-C5, C5-C6, and C6-C7; his right shoulder impingement syndrome and superior labral tear; his status post right shoulder arthroscopy and pending left shoulder arthroscopy; and his bilateral carpal tunnel syndrome with pending carpal tunnel releases. The Veteran was also granted SSA disability benefits based in part on his bilateral rotator cuff tears; his occasional bowel incontinence, as well as a history of left knee surgery with reconstruction in 1994 and left foot surgery. It was noted in the decision that although the Veteran had the residual functional capacity to perform sedentary work, his physical disabilities required that he alternate between sitting, standing and walking to relieve discomfort. It was further noted that the Veteran could only sit and walk for a total of two hours, stand for a total of one hour, lift and/or carry ten pounds occasionally and less than 10 pounds frequently. In addition, it was written that the Veteran can less than occasionally perform pushing/pulling operations with his upper or lower extremities bilaterally, and he can less than occasionally perform bilateral overhead reaching. It was further noted that due to a combination of his symptoms, the Veteran needs to recline two to three hours during a typical 8 hour work day. In an August 2013 opinion, the vocational expert, C.Y., reviewed the Veteran's claims file in detail, to include the Veteran's medical records, and the January 2011 SSA decision. C.Y. also interviewed the Veteran regarding his employment history, and noted that the Veteran had followed a career in sales that was predominantly in the retail area, post-service, and worked in this field until he was no longer able to do so because of his pain and resulting absenteeism. C.Y. noted that the Veteran last worked on a full-time basis in 2004. C.Y. further noted that although the Veteran helped create a multi-media company with another individual, and attempted to help with the progression of this business by putting in a three hour day when able to do so, the business ultimately failed. According to C.Y., the Veteran had no transferrable skills, and although he had pursued light work since he was discharged from service, he had been unable to continue with even that. C.Y. further noted that the Veteran's medical condition had deteriorated during the years, and, as a result, he is now unable to work more than a few hours a day. According to the Veteran, even with the few hours a day he is able to work, he has a high level of absenteeism as his present flare-ups can last 25 days in duration and no employer would ever allow that much time off. According to C.Y., physically speaking, the Veteran is severely limited as he has constant neck pain, pain and limited use of his right shoulder and dominant arm, numbness in his feet, and flare-ups of pain which can last 10 days or more resulting in diminished physical abilities even from the usual restrictions of lifting 10 pounds or less, standing for 1-2 hours a day, sitting for one hour, and needing to lie day at least 3 hours of the normal 8 hour work day. Based on his review of the medical records, as well as his interview of the Veteran, C.Y. determined that it is as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In light of the medical evidence of record, the Veteran's previous work history, the January 2011 SSA decision, and the August 2013 opinion issued by C.Y., the Board finds that the Veteran's service connected disabilities may preclude him from securing and following a substantially gainful occupation. However, the Board cannot grant such benefits in the first instance. At this point, the Board will not make a decision regarding the Veteran's claim for TDIU under 38 C.F.R. § 4.16(b), as this is impermissible based upon regulation and case law. See Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, the Board finds that this matter should be submitted to the Compensation and Pension Director for extraschedular consideration under 38 C.F.R. § 4.16(b). In this regard, the claim is granted. At this point, this claim will necessarily be REMANDED for further action consistent with this decision. ORDER New and material evidence having been received sufficient to reopen the previously denied claim for service connection for left shoulder disability, this portion of the Veteran's appeal is granted. Submission of a claim for a total disability rating for compensation purposes based on individual unemployability to the Director, Compensation and Pension Service, is warranted. REMAND Left Shoulder Disability In statements dated in August 2010 and December 2010, as well as a statement date-stamped as received in December 2011, the Veteran reported to experience ongoing pain in his left shoulder since his in-service motor vehicle accident. In the December 2010 statement, the Veteran stated that he received treatment for his left shoulder injury at the Boise VAMC post-service, but the VAMC was unable to locate records of treatment associated with the 1986 - 1988 time frame. In statements dated in September 2010, the Veteran's ex-wife, and step-son attested to the fact that the Veteran had been experiencing pain in his shoulders since they first became acquainted with him in 1988. According to the Veteran's ex-wife, she and her children always tried different methods of physical therapy, to include walking on the Veteran's back, and daily massages, to help alleviate his pain. In a statement dated in November 2010, and date stamped as received in December 2010, the Veteran's son wrote that he witnessed the Veteran's deteriorating and debilitating condition throughout the years as a result of his in-service accident which caused him to sustain injuries to his back, neck and shoulders. The Veteran was afforded a VA examination in connection to his left shoulder disability in December 2010. Based on his review of the claims file, as well as his evaluation of, and discussion with, the Veteran, the VA examiner diagnosed the Veteran with left shoulder rotator cuff disease which had progressed to degenerative arthritis, and determined that this disorder was not related to the Veteran's military service, to include his in-service June 1984 motor vehicle accident. The examiner based this conclusion on the fact that there was no objective evidence provided to show that the left shoulder was a part of the June 1984 injury. The Board finds this opinion to be inadequate. Although the examiner noted that all records had been reviewed as requested, he did not address the November 2010 opinion issued by the Veteran's primary care physician, which did relate the Veteran's left shoulder disability to his in-service injury. In addition, he did not reconcile his conclusion with the December 2010 x-ray findings wherein the radiologist related the moderate irregularity of the AC joint to an 'old injury.' Although the radiologist did not specify what the 'old' injury was, in light of the fact that the evidence of record is absent any findings demonstrating that Veteran suffered any injuries to the shoulder region subsequent to the in-service motor vehicle accident, this finding does suggest a possible connection between the Veteran's left shoulder disability and his in-service injuries. Moreover, although the service treatment records reflect the Veteran's complaints of, and treatment for, his neck, back, and right shoulder pain, and are absent any treatment for the left shoulder symptoms, they clearly demonstrate that the Veteran was involved in a motor vehicle accident in service which may have affected a number of his joints more severely than others. Indeed, the Veteran has asserted on a number of occasions that he has experienced pain in both shoulders since his in-service accident, and these assertions are supported by the Veteran's family members, who have known the Veteran, and been a part of his life since 1988, close in time to the Veteran's separation from service. As noted above, in the December 2010 statement, the Veteran stated that he received treatment for his left shoulder injury at the Boise VAMC post-service, but the VAMC was unable to locate records of treatment associated with the 1986 - 1988 time frame. In light of the fact that the VA examiner did not address the Veteran's ongoing complaints of pain and discomfort in his left shoulder since his in-service injuries, and given that the significance of the November 2010 VA opinion issued by Dr. L was not addressed, the Board finds that the December 2010 medical opinion was not predicated on a complete review of the claims file. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Therefore, the Board finds that a new VA medical examination and opinion should be obtained to determine the etiology of the Veteran's left shoulder disability. Also, although the Veteran reported that VA was unable to retrieve medical records dated from 1986 - 1988 that documented treatment he received for his in-service injuries at the Boise VAMC, given that his claim will be remanded for additional development, an effort should also be made to obtain any VA records pertaining to treatment the Veteran received for his left shoulder symptoms during the 1986 to 1988 time frame, as well as any outstanding records pertaining to ongoing treatment that are not already on file. Under the VCAA, VA has an obligation to make a reasonable effort to obtain identified private treatment records. See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). TDIU As discussed above, further evidentiary development is necessary before appellate review may proceed on the Veteran's claim of entitlement to TDIU benefits. Specifically, this matter is to be referred to the Director, Compensation and Pension Service, for extraschedular consideration. Accordingly, the case is REMANDED for the following action: 1. Request records of relevant treatment that the Veteran may have received for his left shoulder disability at the Boise VAMC from 1986 to 1988, and since November 2010. Copies of such records which are available should be associated with the claims folder. 2. Then, once these records have been obtained and associated with the claims file, schedule the Veteran for a VA examination with a VA orthopedist to determine the nature and etiology of any left shoulder disorder present. The claims folder and all records on Virtual VA must be made available to the examiner in conjunction with the examination. 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 the June 1984 service treatment records documenting the Veteran's in-service motor vehicle accident, and medical treatment he received for these injuries. Consideration should also be given Veteran's history and particularly to any statements regarding continuity of symptoms since service. Following a review of the record and an examination of the Veteran, the examiner should then express an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any left shoulder disability diagnosed anytime during the pendency of the appeal, had its clinical onset in service or is otherwise related to the Veteran's military service, to include his in-service motor vehicle accident. The examiner should address the Veteran's reported history of pain and discomfort in his left shoulder following his separation from service in 1986, as well as any potential medical findings obtained which reflect treatment for pain and discomfort in the left shoulder soon after the Veteran's service. In addressing these records, the examiner should discuss whether these complaints, and potential medical findings were related to the Veteran's in-service injuries, and early manifestations of any current left shoulder disorder. In answering these questions, the examiner should also address the Veteran's competent assertions that he has experienced ongoing symptoms of pain in his left shoulder since military service, and should specifically set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since his military service. If the examiner finds that the Veteran's disability(ies) is(are) not related to his service, then he/she must reconcile this conclusion with the November 2010 opinion issued by Dr. L., and provide a complete rationale upon which his/her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 3. The RO should submit the claim for a TDIU under 38 C.F.R. § 4.16(b) to the Director, Compensation and Pension Service. The RO should follow the dictates of section 4.16(b) in making this submission. 4. The RO should then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case (SSOC), containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations. An appropriate period of time should be allowed for response. 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 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 2014). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs