Citation Nr: 1638182 Decision Date: 09/28/16 Archive Date: 10/07/16 DOCKET NO. 10-01 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a left shoulder disorder, to include tendonitis of the shoulder. 2. Entitlement to service connection for a right shoulder disorder, to include tendonitis of the shoulder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from June 1986 to June 1990, with subsequent service in the National Guard during the period 1994 to 1996. This matter comes before the Board of Veterans Appeals (Board) on appeal of a rating decision issued by the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO) in July 2008 and Board remands in April 2012 and July 2015. The Veteran testified before the RO's decision Review Office (DRO) in April 2009 and in June 2010 he testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO. Transcripts of both hearings are of record. The Board notes that, in addition to the Veterans Benefits Management System (VBMS) claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims which contains duplicates of records in VBMS. Virtual VA contains __________________________. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, remand is necessary to obtain adequate VA examinations and opinions regarding the Veteran's claimed bilateral shoulder disabilities, including tendonitis. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that if VA provides the veteran with an examination in a service connection claim, the examination must be adequate). A VA examination and opinion as to the etiology of the Veteran's right and left shoulder disabilities was obtained in June 2012 following an April 2012 remand. The July 2015 Board remand requested that all pages of the examination report be associated with the claims file in order to obtain clarification of the report. However, the Board finds that the examiner's opinion regarding the Veteran's bilateral shoulder disabilities with tendonitis to be internally conflicting and entirely confusing and unclear. Specifically, it appears that the examiner found both that the Veteran's bilateral shoulder disabilities were at least as likely as not and less than likely as not related to his in-service injuries. See June 2012 VA Examination Report. Additionally, portions of the examination report are unclear as to whether the examiner is quoting a prior medical record, stating a medical opinion, or reciting facts. The Board notes that the Veteran's STRs indicate treatment for bilateral shoulder complaints and assessments of chronic shoulder dysfunction and supraspinatus tendonitis. Additionally, the Veteran has provided competent testimony of current bilateral shoulder pain and other complaints that have persisted since discharge. However, the record remains unclear regarding the presence of a current disability for disabilities of either shoulder, including tendonitis of either shoulder. Accordingly, remand is again required for an examination and etiological opinion to clarify whether such diagnoses exist and whether they are related to service, as there is insufficient evidence to decide these claims. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his or her representative. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can provide alternative forms of evidence. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an examination from an appropriate medical professional other than the examiner who provided the June 2012 VA examination to determine the etiology of any diagnosed right or left shoulder disorder. The claims folder must be made available to the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must address whether there are any right or left shoulder musculoskeletal disorders present since 2007, including whether the Veteran has/had a diagnosis of tendonitis of the shoulders. Second, if there are such disorders, then for each diagnosed disorder the examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the disorder had onset in, or is otherwise caused by, the Veteran's military service. The examiner must address the following: (a) the STRs noting chronic shoulder dysfunction due to calcium deposits, probably supraspinatus tendonitis, possible bursitis, and normal x-rays; (b) October 1992 and September 1994 examinations in which the Veteran denied arthritis, rheumatism, bursitis, and a painful or "trick" shoulder, and clinical evaluation of the upper extremities and musculoskeletal system was normal; (c) 1995 private records that noted bilateral shoulder impingement; (d) 1998 private records that indicated an impression of acute cervical strain with wry neck and associated right shoulder discomfort; (e) normal x-rays in May 2002 private records; (f) March 2003 private records that indicated normal x-rays and a clinical impression of left shoulder strain; and (g) lay statements in which the Veteran reported he injured his shoulders in service when he fell off a bunk, and that he has had continuous shoulder problems since service. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the examination reports to ensure that they are in complete compliance with the directives of this remand. If the reports are deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. 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 claims must be readjudicated. If the claims remain denied, a supplemental statement of the case 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 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs