Citation Nr: 1503819 Decision Date: 01/27/15 Archive Date: 02/09/15 DOCKET NO. 12-35 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a right shoulder disability, to include osteoarthritis and degenerative joint disease. 2. Entitlement to service connection for a left shoulder disability, to include osteoarthritis, degenerative joint disease and rotator injury. REPRESENTATION Veteran represented by: Pennsylvania Department of Military and Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision of the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before a local hearing officer in August 2012, and at a video conference hearing before the undersigned Veterans Law Judge in November 2013. Transcripts of both hearings are in the Veteran's file. In April 2014, the Board remanded the case for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In compliance with the April 2014 Board remand, the VA examiner who conducted a September 2014 orthopedic examination provided a medical opinion regarding whether the Veteran's currently diagnosed osteoarthritis of both shoulders and rotator injury to the left shoulder were etiologically related to his service or his in-service injury. However, the opinion did not substantially comply with the remand instructions, as the examiner did not address whether it was as likely as not that his current bilateral shoulder disabilities were a result of his conceded in-service exposure to herbicides/Agent Orange. Nor did the examiner acknowledge or comment on the Veteran's frequent reports of a long history of bilateral shoulder problems and his belief that his in-service exposure to Agent Orange caused his current bilateral shoulder symptomatology in the years since service. A medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Nicholson, 21 Vet. App. 23 (2007). See also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, another opinion should be obtained on remand. Several private treatment records and both the May 2010 and September 2014 VA examiners note that the Veteran received Workman's compensation for at least one shoulder injury sometime after his discharge from service. There is no evidence that any attempt was made to obtain a complete copy of the Veteran's Workers' Compensation claim. On remand, attempts should be made to obtain these records. Accordingly, the case is REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain and associate with the Veteran's claims file all relevant records related to any post-service claim for workmen's compensation benefits for any shoulder injury, to include any medical records upon which any decision was made. If these requested records are unavailable, or a determination is made that further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2). 2. After undertaking the above development to the extent possible, obtain an addendum to the September 2014 VA examination by the same examiner or another qualified examiner if that examiner is not available. The claims file should be made available to and reviewed by the examiner. Based on a review of the claims file and an examination of the Veteran (if needed), the examiner should provide an answer to the following question: Is it at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran's current right and left shoulder disabilities, to include osteoarthritis, degenerative joint disease, and rotator injury, are etiologically related to his active duty military service, to include the in-service bunker injury or his conceded in-service exposure to herbicides/Agent Orange? The VA examiner must comment on the Veteran's service and post-service history. The examination report must include a complete rationale for all opinions expressed. 3. Then, readjudicate the issues remaining on appeal. If either of the benefits sought remains denied, issue a supplemental statement of the case (SSOC) and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ M. N. HYLAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).