Citation Nr: 1631922 Decision Date: 08/11/16 Archive Date: 08/23/16 DOCKET NO. 12-27 163A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1987 to November 1990. He also served a period of active duty for training from June 1984 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction of the case now resides with the RO in Atlanta, Georgia. In June 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. The issues of whether new and material evidence has been received to reopen service connection for diabetes mellitus, sleep apnea and posttraumatic stress disorder have been raised by the record in a June 2016 statement, 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 AOJ. VA will notify the appellant if further action is required. REMAND The Veteran testified at his Board hearing that he first hurt his left shoulder in service, during a picnic while playing tug-of-war. He stated that he kept reinjuring his shoulder since that incident and has had continuous problems with his left shoulder since active duty service. The Veteran stated that he first went to see a doctor about his left shoulder problems at the VA in Bronx, New York within one year of his discharge from active duty service. In October 2012, the Veteran underwent a VA examination for his left shoulder condition. He was diagnosed with a left shoulder strain and status post left rotator cuff repair. The VA examiner concluded it was less likely than not that the Veteran's current condition was service-connected. The examiner reviewed the Veteran's history, including left shoulder complaints and treatment in service and a post-service motor vehicle accident which re-injured the shoulder. The examiner noted the Veteran's in-service treatment records documenting complaints of left shoulder pain and available post-service treatment records, but then noted there was a 15-year time gap from his discharge to the first post-service medical records noting a left shoulder condition. The October 2012 VA examiner's opinion is inadequate because the examiner based the negative opinion at least in part on the absence of continuity of treatment since service. It is continuity of symptomatology, rather than continuity of treatment, that is important. Further, the VA examiner noted the Veteran's various reports explaining how he hurt his left shoulder (in service as well as after service) without providing any explanation in how the Veteran's lay statements impacted his conclusion that the Veteran's current left shoulder condition is not likely related to active duty service. The VA examiner also noted that the Veteran has worked as a police officer, but again did not explain how this post-service work history affected the examiner's assessment as to the etiology of the Veteran's current left shoulder condition. The discussion of the underlying medical rationale of an opinion, not just review of the claims file, is where most of the probative value of an opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). On remand, the Veteran's claim should be returned to the October 2012 VA examiner for a more responsive opinion on the etiology of the Veteran's left shoulder condition that specifically considers his lay statements concerning the onset and progression of his symptoms and specifically addresses evidence in the record favorable to his claim. Since the claims file is being returned it should be updated to include any outstanding VA treatment records, to include records from the VA Medical Center in Bronx, New York. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file copies of all outstanding VA treatment records, to include any records from the VA Medical Center in Bronx, New York. If no additional outstanding records are available, this fact should be noted in the Veteran's claims file. 2. Return the claims file to the examiner who conducted the Veteran's October 2012 VA examination (or another appropriate examiner if that examiner is unavailable) for supplemental comment on the etiology of the Veteran's left shoulder condition. The claims file, to include a copy of this Remand, must be made available to the examiner for review prior to the exam. If the examiner determines that an addendum opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate examination. Any indicated evaluations, studies, and tests should be conducted. Based on the examination, if deemed necessary, and review of the record, the examiner is requested to address the following questions: (a) Identify all current diagnoses related to the Veteran's left shoulder condition. For each diagnosis, state whether the disorder was also present during service. (b) For any disorder which was present during service, provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed left shoulder condition had its onset in service or is otherwise related to active duty? The examiner should provide a complete rationale for any opinion provided and should specifically comment on the Veteran's lay statements concerning the onset and progression of his left shoulder problems. In attempting to comment on this determinative issue of causation, the October 2012 VA examiner impermissibly relied on the seeming absence of indication or actual treatment for left shoulder problems for many years following discharge from active duty service, such as would be reflected in the treatment records. A clear rationale for any opinions expressed and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Then re-adjudicate the Veteran's claim. If any benefit remains denied, issue an appropriate Supplemental Statement of the Case (SSOC), and give the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, 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). _________________________________________________ M. E. LARKIN 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).