Citation Nr: 1621244 Decision Date: 05/25/16 Archive Date: 06/02/16 DOCKET NO. 10-08 205A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a right shoulder disorder, to include residuals of an in-service dislocated right shoulder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had active service from July 1981 to July 1985, January 1991 to February 1991, and February 1991 to May 1991, with additional periods of service in the Air National Guard. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran submitted a notice of disagreement (NOD) in December 2008; a statement of the case (SOC) was issued in January 2010 and the Veteran perfected his appeal with the timely filing of a VA Form 9 (substantive appeal) in March 2010. The Veteran provided testimony before the undersigned Veterans Law Judge at a Board videoconference hearing in February 2016. A transcript of the hearing is of record. This appeal was processed using the Veterans Benefits Management System (VMBS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the Veteran's case. In October 2015, the Veteran submitted a VA Form 21-526EZ asserting eleven new claims. Further, in January 2016, the Veteran submitted an additional VA Form 21-526EZ asserting an additional claim for service connection for a disability in his eyes. The issues raised in October 2015 and January 2016 have been raised, but 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 appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete and adequate record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Veteran seeks entitlement to service connection for a right shoulder disorder, which he contends was incurred when he dislocated his shoulder during his 1981 to 1985 period of active service. In particular, the Veteran reported at his February 2016 hearing that he fell while playing football and hit his right shoulder on the ground, after which he went to the health clinic. See hearing transcript at page 3. He reported receiving a visual examination only, with no x-rays or other physical examination. Id. He reported his arm was placed into a sling and no medication was prescribed. Id. The Veteran also reported that his right shoulder bothered him after that incident, but that he worked through the pain ("I just gritted my teeth and went on"). Id. at page 4. He reported initially seeking treatment after it became unbearable in 2004. Id. The Veteran also reported receiving private treatment in 2007 or 2008 and that the private physician suggested his current symptoms were likely related to an old injury. Id. at page 5. He also reported receiving VA treatment, including rehabilitation, MRI, and x-rays. Id. at page 6. The Veteran was afforded a VA examination of his right shoulder in May 2013. The examiner noted a diagnosis of arthritis in the joint, however, no diagnostic testing was reported to confirm such a diagnosis. The examination report shows the examiner was asked to opine whether any current disability was causally connected to a 1983 wrestling injury. The examiner found the claimed condition to be less likely than not incurred in or caused by the claimed in-service injury because the examiner could not find injury or complaints related to the right shoulder in the service treatment records, noting the entrance examination which shows a pre-service left clavicle fracture and a separation examination with no shoulder complaints. No further explanation was provided, and no consideration was given to the Veteran's reported history of right shoulder pain. In November 2013, another VA examiner provided an opinion based upon review of the record, concluding that the current right shoulder disability was less likely than not incurred in active service. This examiner referred to an in-service instance of right shoulder pain in May 1983 and reported, "While intoxicated he was wrestling and reported pain in the right shoulder." The examiner further stated, "On this 1983 treatment record there was no X-ray evidence of shoulder dislocation. In fact there is a question mark after the assessment diagnosis, 'Subluxation of humeral head reduced?'" The service treatment records before the Board include one set of records pertaining to the 1981 to 1985 period of service. Handwritten notes on these records suggest the March 1981 enlistment examination report and April 1985 separation examination report, which are available for the Board's review, were printed from microfiche. No additional records for this period of service, however, are within the record before the Board. In particular, the May 1983 record referred to by the November 2013 VA examiner is not within the record before the Board, in either the Virtual VA file, or the Veterans Benefits Management System file. The only records besides the enlistment and separation examination reports referenced above, are a dental file, and civil service records following the Veteran's periods of service. On remand, all available service treatment records must be associated with the record before the Board, in particular the May 1983 right shoulder treatment referred to in the November 2013 VA examiner's opinion. 38 C.F.R. § 3.159(c)(2) (2015). Any VA treatment records, particularly with diagnostic testing and/or treatment of the right shoulder, should also be associated with the record before the Board. Id. Moreover, neither VA examiner discussed potentially relevant post-service private treatment records. An October 2009 private physician submitted a report. In this report, the Veteran's history of progressive symptoms since a 1983 right shoulder dislocation was reported. Radiographic examination of the shoulder revealed a type 3 acromion and acromioclavicular joint arthritis. The diagnostic reports relied upon were not provided. This physician diagnosed right shoulder rotator cuff tendinitis, possible tear, impingement syndrome with type 3 acromion, acromioclavicular joint internal derangement. The November 2013 VA examiner noted a 2009 finding of arthritis, but made no mention of the possibility of a remote tear in the opinion. More recently, in March 2016, after both VA examination reports, additional private evidence was received. A March 2016 MRI of the right shoulder revealed the supraspinatous tendon demonstrating mild tendinopathy and articular surface fraying without tear. The subscapularis tendon demonstrated mild tendinopathy cranially without focal tear. The reviewing physician noted these findings as "evidence of previous anterior-inferior dislocation" and found "associated chronic tear of the anterior and anterior-inferior labrum which appear blunted and irregular with a suspected small residual periosteal sleeve avulsion lesion." Thus, in both 2009 and 2016, private radiological findings suggest the presence of a remote injury of the right shoulder, potentially dislocation with remote tearing. To date, no VA or private examiner has provided an opinion as to whether the Veteran's current right shoulder disability is as likely as not due to the remote injury described by the Veteran and corroborated by the current radiographic findings. In fact, both VA examiners seemingly ignored the Veteran's reports of symptoms at the time of any in-service incident and since. A VA examiner is not free to ignore the Veteran's competent lay statements. In fact, the failure of the VA examiners in this case to address any aspect of the Veteran's reported history as to lay observable symptoms leads the Board to find the analysis in both reports inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). For these reasons, a new VA examination is warranted for the right shoulder claim in order to allow the Veteran the opportunity to discuss his history of symptoms and the conditions he was exposed to in service with a VA examiner, and to allow for the VA examiner to consider the records suggesting the Veteran, in fact, had a past history of right rotator cuff dislocation and tear. Finally, in addition to the service treatment records and post service VA records discussed above, it appears that the RO did not adequately assist the Veteran in obtaining identified post-service private outpatient treatment records. In October 2009, the Veteran identified his private physician for his right shoulder, Dr. C.B., and provided a name and address. The October 2009 medical report discussed above is from this physician, however, no additional records were obtained. In March 2011, the Veteran submitted a VA Form 21-4142 (Authorization) related to records from M.L.J, M.D. On this form, the Veteran identified March 7, 2011, as the date of treatment. The RO requested these records in April 2011. In May 2011, the RO received communication from Dr. M.L.J.'s office indicating that the Veteran was last treated on February 28, 2011. There is no evidence that the RO communicated with the Veteran related to this response or attempted to further assist him in this regard. On remand, the RO must adequately assist the Veteran in obtaining private records from both Dr. C.B., and Dr. M.L.J. 38 C.F.R. § 3.159(c)(1) (2015). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete an updated VA Form 21-4142 to authorize VA to obtain the records related to his treatment with Drs. C.B. and M.L.J. The RO should clarify the dates of treatment with Dr. M.L.J. considering the office's communication of May 2011. If the Veteran provides this authorization, assist him by attempting to obtain these relevant private treatment records. Associate all records obtained with the claims file. If any such records cannot be obtained, document this in the claims file and notify the Veteran accordingly. 2. Associate with the record before the Board all service treatment records, to include the May 1983 treatment of the Veteran's right shoulder referenced by the November 2013 VA examiner. 3. Associate all post-service VA treatment records of the Veteran's right shoulder, to include rehabilitation, MRI, and x-ray reports, with the record before the Board. 4. Once the record is developed to the extent possible, afford the Veteran a new VA examination to assess the nature and etiology of any right shoulder disability present. A copy of this remand and all relevant medical records should be made available to the examiner. All necessary testing to include x-ray and the MRI, if appropriate, should occur. The examiner is asked to review the pertinent evidence, including the Veteran's lay assertions, service treatment records, and post-service treatment records, to include private diagnostic testing suggestive of the existence of a remote injury to the right shoulder. The examiner is asked to first assess the appropriate diagnosis for the Veteran's right shoulder. If a disability is diagnosed, then, based on the record review and examination results, the examiner is requested to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any right shoulder disability is related to the Veteran's period of active duty. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. The examining physician must take into consideration the Veteran's competent lay statement related to his symptoms in service and since. 5. Review the record to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that they are responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the above action, the claim on appeal should be readjudicated. If benefits are not awarded to the Veteran's satisfaction, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, these issues should be returned to the Board for further appellate 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). _________________________________________________ DEBORAH W. SINGLETON 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) (2015).