Citation Nr: 1551232 Decision Date: 12/07/15 Archive Date: 12/16/15 DOCKET NO. 13-02 678 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a right shoulder disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Barbier, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1976 to May 1978. He also served with the Army National Guard from April 1980 to July 2000, to include a period of active duty for training (ACDUTRA) in June 1983. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2012 rating decision in which the RO reopened a previously denied claim for service connection for a right shoulder condition. In April 2012, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in July 2012. In January 2013, the Veteran submitted a statement, which was accepted as a substantive appeal (in lieu of a VA Form 9, Appeal to the Board of Veterans' Appeals). In July 2014, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In February 2015, the Board found that the criteria for reconsideration of the claim were met and remanded the claim for service connection, on the merits, for further development. This appeal is now being processed utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. For reasons expressed below, the claim on appeal is. again, being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND Although the Board regrets the additional delay, a review of the claims file reveals that further AOJ action on the claim on appeal is warranted. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the February 2015 remand, the Board directed the AOJ to obtain a VA examination and opinion with respect to the Veteran's right shoulder, which addressed all diagnoses of the right shoulder and commented on relevant evidence, to specifically include the prior February 2012 VA examination report and the January 2013 private physician note. The Veteran underwent the requested examination in June 2015, at which time the VA examiner diagnosed acromioclavicular joint osteoarthritis or degenerative joint disease. The examiner opined that such was less likely than not caused or aggravated by the Veteran's military service. The examiner noted that the Veteran had a right shoulder muscle tear in January 1976, prior to his military service and a right shoulder strain in July 1976. The examiner noted no right shoulder trouble in the 1990s and concluded that his arthritis was more likely a supervening injury or the result of wear and tear. The Board finds that the VA examiner did not expressly comment on the February 2012 VA examination report, January 2013 private physician note or March 2011 coach's statement, as directed. Specifically, the VA examiner did not provide an opinion as to whether tendonitis noted by the January 2013 private physician was related to the Veteran's military service. Furthermore, the evidence of record shows no supervening injury, as noted by the examiner. Additionally, while the VA examiner noted a preexisting right shoulder tear, no such injury was noted on the Veteran's entrance examination. Thus, the Veteran is to be presumed sound at entrance, unless there is clear and unmistakable evidence that the disability pre-existed service, and was not aggravated during service so as to rebut that presumption. See 38 U.S.C.A. § 1111 (West 2014); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Under these circumstances, the Board finds that the opinion obtain is inadequate, and that remand is necessary to obtain further VA medical opinion in this regard. See Stegall, supra. On remand, the AOJ should arrange to obtain an addendum opinion from the June 2015 examiner or from another appropriate physician, based on claims file review (if possible). The AOJ should only arrange for the Veteran to undergo further examination(s) if deemed necessary in the judgment of the physician designated to provide the addendum opinion. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655 (2015). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to obtaining further medical opinion on this claim, to ensure that all due process requirements are met, the AOJ should also undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. In this regard, the AOJ should give the Veteran another opportunity to provide 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). The Board points out that the AOJ sent a letter to the Veteran in April 2015 requesting any information with respect to private treatment records-specifically, treatment by a rheumatologist in February 2012 and records from his private physician at Summit Orthopedics, as directed in the February 2015 remand. The Veteran did not respond. However, given the above-noted basis for remand, and to ensure that the record is complete, the Veteran should be given another opportunity to provide this information/evidence on remand. 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 (2015). 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; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action 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. Adjudication of the claim should include consideration of all evidence added to the record since the last adjudication. Accordingly, this matter is hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records-to include records from the private rheumatologist who treated him in February 2012 and from Summit Orthopedics. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within a one-year period). 2. 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 of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or, the time period for the Veteran's response has expired, arrange for the June 2015 VA examiner to provide an addendum opinion. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the claims file, and arrange to obtain a medical opinion from another appropriate physician based on review of the claims file (if possible). The need for an additional examination of the Veteran is left to the discretion of the clinician designated to provide 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 physician, and the addendum opinion/examination report should include discussion of the Veteran's documented medical history and assertions. If the Veteran is examined, all appropriate tests and studies (to include x-rays) should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must clearly identify diagnosis/es for all disability(ies) affecting the right shoulder underlying the Veteran's complaints-to include arthritis and tendonitis-currently present, or present at any point pertinent to the May 2007 claim (even if currently asymptomatic or resolved). Then, for each such diagnosed disability. the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service or is otherwise medically related to in-service injury or disease-to particularly include the noted football injury and noted assessment of right shoulder strain and/or reported multiple right shoulder dislocations. The examiner is reminded that the Veteran's entrance examination was normal and the Veteran is presumed sound at entry-unless there is clear and unmistakable evidence of a pre-existing disability and that the disability was not aggravated during service, so as to rebut that presumption. In addressing the requested opinion(s), the examiner must consider and discuss all pertinent medical and other objective evidence (to include the February 2012 VA examination report and January 2013 private physician note) as well as all lay assertions-to include the supporting March 2011 statement from the Veteran's former football coach, and competent assertions as to the nature, onset, and continuity of right shoulder symptoms. All examination findings/testing results (if any), along with complete and clearly-stated rationale for the conclusions reached, must be provided. 4. 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. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim remaining on appeal, in light of all pertinent evidence (to particularly include that added to the claims file since the last adjudication) and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. 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 benefits 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) (2015).