Citation Nr: 1626746 Decision Date: 07/05/16 Archive Date: 07/14/16 DOCKET NO. 08-07 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran had active duty service from August 1966 to September 1971. The issues come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This claim was previously before the Board in April 2012, at which time it was remanded for additional development. That development having been completed, this claim is once again before the Board. This appeal was processed using VBMS (the Veterans Benefits Management System). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay in this appeal, it is constrained by the fact that proper adjudication requires further development with respect to the appealed claim. The Veteran was afforded a VA examination in April 2008 to determine if his current left shoulder disability is causally or etiologically related to service. The Veteran asserted that the VA examiner was confused several times during the examination and specifically could not remember which shoulder she was to be examining. In its April 2012 Remand, the Board acknowledged that, although the examiner noted a left shoulder disability in the medical history and in her conclusion, the examiner specifically noted right shoulder findings during the physical examination. As the examiner's opinion appeared to have been partially based on physical findings from the incorrect shoulder, the Board found that the 2008 examination was inadequate. Therefore, a new VA examination and nexus opinion was requested by the April 2012 Remand. On remand, the Veteran was provided with an additional VA examination on June 2012. The examination revealed the Veteran underwent a left shoulder total arthroplasty in May 2008. The examiner indicated that the records did not contain evidence of the Veteran parachuting in service. The examiner opined that the Veteran's left shoulder was less likely than not caused by or incurred in military service. In support, the examiner provided that there was no showing of any treatment or diagnosis for a shoulder condition in military service. Additionally, it was noted that, based upon established medical literature and knowledge, there was no support for the development of a shoulder disability as a result of gravitational forces from flying jet aircraft. However, the examiner did not opine regarding the Veteran's allegations of a relationship between his left shoulder disability and parachute landings during military service, as he noted that there was no evidence of parachuting activity in service. The Veteran maintains that the left shoulder condition is caused by the landing injuries on his joints from parachuting is service. Service records confirm the Veteran was an air navigator. His DD 214 also shows that he completed the US Air Force Survival Course and US Air Force and US Air Force Combat Crew Training. As such, the Board finds that it is reasonably plausible that the Veteran would have had to undergo parachute training as part of his flight training, particularly within the context of survival. Therefore, granting the Veteran the benefit of the doubt, the Board finds that the Veteran's statements regarding parachuting in service should be afforded consideration, as he is both competent and credible to provide such statements. In Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), the Court found that once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. In Stefl v. Nicholson, 21 Vet. App. 120 (2007), the Court found that, "[w]ithout a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing." Here, the Board's adjudication of this claim is frustrated by the lack of an opinion regarding the relationship of in-service parachuting and the development of a left shoulder disability. As such, the claims file should be returned to the 2012 VA examiner so that he may consider the Veteran's lay statements regarding parachuting in service as credible and render an opinion regarding possible etiology of such activity to the Veteran's current left shoulder disability. A full rationale, to include citations to relevant medical literature where appropriate should be provided. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The Veteran's claims file should be returned to the VA examiner who conducted the June 2012 VA examination or, if that examiner is no longer available, an examiner of like skill and qualification. The relevant documents in the claims file, to include service treatment records, should be made available to and reviewed by the examiner in connection with the new examination. Any tests deemed medically advisable should be accomplished. The examiner should clearly address the following: Whether it is at least as likely as not (a 50% probability or more) that any currently diagnosed left shoulder disability had its onset during or was caused by service? The examiner should specifically address the Veteran's assertions that his disability is due to parachute landing injuries. For the purpose of this examination, the examiner must consider the Veteran's statements as credible despite any lack of corroboration in the service personnel or medical records. A complete rationale for any opinion offered should be provided. 3. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ WAYNE M. BRAEUER 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).