Citation Nr: 1510707 Decision Date: 03/13/15 Archive Date: 03/24/15 DOCKET NO. 08-02 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a left shoulder disorder, to include as secondary to service-connected post-operative right should rotator cuff tear repair. 2. Whether there was clear and unmistakable error in not inferring a claim for special monthly compensation by reason of being housebound. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from February 1989 to November 1997. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in in Atlanta, Georgia. In February 2012, the Veteran presented testimony at a hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. In February 2013, the Board remanded this matter for further development, and the case has been returned to the Board for appellate review. In May 2014, additional evidence was submitted without a waiver of initial consideration by the Agency of Original Jurisdiction (AOJ). The Board has reviewed the documents in both the paper claims file and the electronic claims file. In July 2014, the Veteran raised the issues of whether there was clear and unmistakable error in the assignment of the effective dates for the grant of a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) and for service connection for a sleep disorder, but those 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. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was afforded a VA examination in March 2013 in connection with his claim for service connection for a left shoulder disorder. Although the examiner stated that the left shoulder was not proximately due to or the result of the Veteran's service-connected right shoulder disability, he did not address whether the latter disorder may have aggravated the left shoulder disorder, particularly following his right shoulder surgery. Therefore, an additional medical opinion is needed. In addition, as noted above, the Veteran submitted additional evidence in May 2014 that has not been reviewed by the RO. A supplemental statement of the case (SSOC) was not issued, and the Veteran and his representative have not provided a waiver of the RO's initial consideration. As such, the additional evidence must be referred to the AOJ for review and preparation of a SSOC, if a grant of the benefit sought is not made. Moreover, in a July 2014 rating decision, the RO denied the issue of whether there was clear and unmistakable error in not inferring a claim for special monthly compensation by reason of being housebound. Subsequently, in July 2014 correspondence, the Veteran disagreed with the July 2014 rating decision. The RO has not provided the Veteran with a statement of the case (SOC) in response to this notice of disagreement. Because the notice of disagreement placed the issue in appellate status, the matter must be remanded for the AOJ to issue an SOC addressing the claim for clear and unmistakable error. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. The AOJ should issue an SOC addressing whether there was clear and unmistakable error in not inferring a claim for special monthly compensation by reason of being housebound. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of this particular issue following the issuance of the statement of the case unless he perfects his appeal. 2. The AOJ should refer the Veteran's claims file to the March 2013 VA examiner, or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any current left shoulder that may be present. An additional examination of the Veteran should be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the electronic claims file, including the Veteran's service treatment records, and post-service medical records. The examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current left shoulder disorder was either caused by or permanently aggravated by his service-connected post-operative right shoulder rotator cuff tear repair. In rendering this opinion, the examiner should address the fact that the Veteran underwent right shoulder surgery and discuss whether the Veteran would have used his left shoulder to compensate for his right shoulder at any time since that surgery. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the electronic claims file, must be made available to the examiner for review. 3. After completing the above action, the AOJ should conduct any other development as may be indicated as a consequence of the action taken in the preceding paragraph. 4. The case should then be reviewed by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals