Citation Nr: 1550470 Decision Date: 12/02/15 Archive Date: 12/10/15 DOCKET NO. 13-00 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a neck disorder, to include as secondary to a service-connected right shoulder disability. 2. Entitlement to service connection for a right shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active military service from October 1968 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The issues of entitlement to service connection for a heart disorder and a stomach disorder due to the consumption of contaminated water at Camp Lejeune have been raised by the record in a January 2015 statement, and entitlement to total disability rating due to individual unemployability (TDIU) has been raised by the record in a July 2015 TDIU application, but these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issue entitlement to service connection for a neck disorder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT Competent and credible medical and lay evidence indicates the Veteran's right shoulder disability began in service. CONCLUSION OF LAW A right shoulder disability was incurred in active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is granting in full the benefits sought on appeal for entitlement to service connection for a right shoulder disability. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. In order to establish entitlement to service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease of injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service treatment records (STRs) show that in June 1970, the Veteran sustained a right shoulder injury. Right shoulder x-rays showed acromioclavicular (AC) joint separation. While he had a normal examination of his upper extremities at his November 1970 separation examination, it was noted that he had sustained right AC joint separation in June 1970. A January 2004 right shoulder x-ray showed probable rotator cuff disease and osteolysis of the distal clavicle probably due to remote trauma. In April 2007, the Veteran's physician Dr. Rodney A. Mortenson opined that the Veteran had a dislocated right clavicle secondary to old trauma. In November 2009, Dr. Mortenson noted that the Veteran sustained an in-service right shoulder injury and diagnosed the Veteran with right clavicle dislocation secondary to an injury in service. In October 2015, the Veteran's physician Dr. Ibrahim N. Oudeh noted that the Veteran sustained right shoulder trauma during his service and opined that the Veteran's current right shoulder disability was the result of the in-service trauma. At the October 2015 hearing, the Veteran credibly testified that he injured his right shoulder in service. He also credibly testified that he has had right shoulder pain since service and treated his right shoulder symptoms with over-the-counter medications and also underwent injection therapy. In addition, he reported that he underwent right shoulder surgery in November 2009. Finally, he testified that Dr. Oudeh had the opportunity to review his STRs and medical records. The opinions of Drs. Mortenson and Oudeh are also given great probative weight as they examined the Veteran's current right shoulder disability and opined that his current right shoulder disability was related to his in-service injury. The Veteran's testimony is given great probative weight as it is consistent with the medical record showing a diagnosis and treatment for a right shoulder disability, which occurred during his active military service. In addition, his testimony showed that he continually treated his right shoulder pain with medications and injection therapy after his military service. The criteria for service connection have been met and the Veteran's claim is granted. ORDER Service connection for a right shoulder disability is granted. REMAND The Veteran asserts that his neck disorder is the result of the same accident that resulted in his right shoulder disability. Furthermore, the granting of service connection for the Veteran's right shoulder disability raises the possibility that the Veteran's neck disorder is related to a now service-connected disability. At the October 2015 hearing, the Veteran testified that he was told he had a pinched nerve in his neck and underwent neck surgery in July 2015. He also reported that a physician felt his neck disorder was due to his fall in service. However, the Veteran's medical records do not contain any medical opinions regarding his neck disability. In addition, the July 2015 surgical records are not contained in the claims folder. Therefore, the Board finds that a remand is necessary in order for the RO to obtain the surgical records, which may contain an opinion regarding the etiology of the Veteran's neck disorder. If the outstanding records do not provide a nexus opinion, the RO must also obtain a VA medical opinion regarding the etiology of the Veteran's neck disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Obtain surgical and/or treatment records for the Veteran's neck disorder, including the July 2015 neck surgery. 2. Then, schedule the Veteran for a VA orthopedic examination. The Veteran's claims file should be provided. The examiner should diagnose any current neck disability, and then should address the following questions: a) Is it at least as likely as not (50 percent or greater) that a current neck disability either began during or was otherwise caused by the Veteran's military service, to include his fall therein in which he injured his shoulder in June 1970. Why or why not? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's neck disorder was caused by his service-connected right shoulder disability? Why or why not? c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's neck disorder was aggravated (permanently increased in severity beyond the natural progress of the disorder) by his service-connected right shoulder disability? Why or why not? If aggravation is found, a baseline severity of the neck disorder should be established prior to the aggravation occurring. 3. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. 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 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). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs