Citation Nr: 1514402 Decision Date: 04/03/15 Archive Date: 04/09/15 DOCKET NO. 10-18 645A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to service connection for right shoulder disability characterized as adhesive capsulitis, claimed as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1969 to July 1971. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2009 rating decision in which the RO denied the Veteran's claim for service connection for right shoulder adhesive capsulitis, claimed as secondary to service-connected diabetes mellitus, type II. In September 2009, the Veteran filed a notice of disagreement (NOD) with the denial. A statement of the case (SOC) was issued in March 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeals to the Board of Veterans' Appeals) in May 2010. This appeal has been processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. For the reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that additional action in this appeal is warranted. The Veteran has asserted that current shoulder disability-specifically, adhesive capsulitis in theright shoulder-is related to his service-connected diabetes mellitus, type II. In support of his claim, the Veteran submitted private treatment records and a letter from his physician. These records reflect that, in September 2007, the Veteran underwent arthroscopic surgery on his right shoulder to repair a right shoulder impingement, partial rotator cuff tendinitis, and subacromial bursitis. The surgeon noted that the arthroscope revealed marked capsulitis. In a December 2007 treatment note, the Veteran's private orthopedist stated that the "etiology of adhesive capsulitis has a strong association with a history of diabetes." In another private treatment document, the Veteran's private orthopedist reiterated that adhesive capsulitis had an increased association with diabetes. Given the private medical evidence submitted, the AOJ arranged for the Veteran to undergo VA examination to obtain medical information as to the nature and etiology of current right shoulder disability. On VA examination in July 2009, the VA examiner diagnosed status post right shoulder surgery with scarring, right shoulder strain. After reviewing the Veteran's medical records and conducting an examination, the examiner opined that it was less likely than not that the Veteran's adhesive capsulitis was related to his diabetes mellitus. The examiner stated that adhesive capsulitis was a mechanical phenomenon, while diabetes mellitus was a metabolic phenomenon. No further rationale was provided. Subsequently, in a September 2009 letter, the Veteran's orthopedist stated that there was a higher incidence of adhesive capsulitis in patients with diabetes mellitus. The Veteran submitted the results of Internet research which generally indicates that there is an increased risk of adhesive capsulitis in individuals who also have diabetes. No opinion specific to the Veteran was provided. Given the inadequate rationale provided by the July 2009 examiner, and the additional evidence reived,the AOJ sought another opinion. In January 2013, the Veteran underwent another VA examination. The examiner diagnosed scars of the right shoulder, status post arthroscopy; degenerative joint disease of the right acromioclavicular joint; and partial rotator cuff tear and adhesive capsulitis. After reviewing the Veteran's claims file and conducting an examination, the examiner opined that is was less likely as not that the Veteran's adhesive capsulitis was proximately due to or the result of his service-connected diabetes mellitus. Instead, the examiner stated that it was more likely than not that the adhesive capsulitis was a result of the tear of the rotator cuff. The examiner also stated that the Veteran's adhesive capsulitis was less likely than not a complication of diabetes mellitus despite the medical information submitted by Veteran indicating a relationship between adhesive capsulitis and diabetes mellitus. The examiner stated that information regarding the onset of the Veteran's diabetes and when the Veteran injured his rotator cuff would have been beneficial. Unfortunately, the Board finds that the January 2013 VA examiner's opinion is also inadequate to resolve the claim. Although the examiner indicated that the claims file was reviewed, his opinion seemed to suggest that he did not have information needed to fully address the etiology question posed-i.e., the onset of the Veteran's diabetes and when the Veteran injured his rotator cuff-that should be documented in the electronic records. Also, although the examiner provided an opinion relating the Veteran's adhesive capsulitis to partial rotator cuff repaired in September 2007 and not to his service-connected diabetes mellitus, the examiner did not provide a rationale for doing so. Furthermore, it is unclear whether the examiner considered both causation and aggravation in addressing whether there is a secondary relationship. Notably, nce VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Given the deficiencies noted above, the Board finds that further medical opinion-based on full consideration of the Veteran's documented history and assertions, and supported by complete, clearly-stated rationale-is needed to resolve the Veteran's claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The AOJ should obtain an addendum opinion from the individual who conducted the January 2013 examination. If the prior examiner is not available, the AOJ should obtain an opinion, based on a review of the claims file (if possible), from another appropriate physician. The AOJ should only arrange for the Veteran to undergo further examination if deemed necessary in the judgment of a competent medical professional. Prior to arranging to obtain further medical opinion in this appeal, to ensure that all due process requirements are met, and the record is complete, the AOJ should obtain and associate with the claims file any outstanding, pertinent records, to include VA treatment records. Notably, as VA treatment records dated through May 2012 have been associated with the claims file, the AOJ should obtain records of VA treatment since that date. The AOJ should also give the Veteran another opportunity to provide any additional information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2014). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain any outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, dated since May 2012. Follow the provisions of 38 C.F.R. § 3.159 as regards obtaining records from Federal facilities in procuring such records. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to any additional evidence pertinent to the claim remaining on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses from each contacted entity are associated with the claims file, arrange to obtain an addendum opinion from the January 2013 VA examiner. If the examiner who provided the January 2013 opinion is unavailable, the opinion should be obtained by another appropriate physician, based on claims file review (if appropriate). The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/report must reflect full consideration of the Veteran's documented medical history and assertions. Based on full consideration of all pertinent medical and lay evidence (to include the Veteran's own assertions), the examiner should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability that the Veteran's adhesive capsulitis (a) was caused, or, if not (b) is aggravated (worsened beyond natural progression) by his service-connected diabetes mellitus. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examiner must answer both questions concerning causation and aggravation, as appropriate. In rendering the requested opinion(s), the examiner must consider and discuss all medical and other objective evidence of record-to particularly include the medical records, orthopedist's letter, and results of Internet research provided by the Veteran, and the July 2009 and January 2013 VA opinions-as well as all lay assertions. The examiner must provide complete, clearly-stated rationale for the conclusions reached, whether favorable or unfavorable, citing to specific evidence of record and medical authority, as warranted. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the above actions, and any other notification or development action deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence (to include all evidence received since the last adjudication of the claim in the August 2014 statement of the case) and legal authority. 7. If the claim remains denied, furnish to the Veteran an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2014).