Citation Nr: 1752709 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-32 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, to include degenerative arthritis. 2. Entitlement to service connection for a bilateral shoulder disorder, to include degenerative arthritis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1979 to January 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In February 2017, the Board most recently remanded this matter to acquire additional VA treatment records. The RO has since complied with the Board's directives and this matter is properly before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board acknowledges that the Veteran initially filed a claim for shoulder arthritis (without designating an affected side) and that the record does not otherwise indicate whether he is seeking service connection for a left, right, or bilateral shoulder disorder. See April 2010 Veteran's Application for Compensation and Pension. In Clemons v. Shinseki, 23 Vet App 1 (2009), the United States Court of Appeals for Veterans Claims (Court) addressed the scope of claims with regard to what is claimed versus what should be addressed by VA. The Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons and the fact that the current evidence shows bilateral shoulder problems, the Board has recharacterized this issue as a claim for a bilateral shoulder disorder, as this characterization provides the most favorable review of his claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND If VA provides a medical examination or opinion for the issue of service connection, whether or not obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Adequacy occurs when the Board is able to perform a fully informed adjudication. Id. As such, VA medical examinations must be based upon consideration of the Veteran's entire history and describe the disability present. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). Additionally, VA medical opinions must be based on accurate factual premises, address all applicable theories of entitlement, and be supported by clearly and fully articulated rationale. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 120; Reonal v. Brown, 5 Vet. App. 458 (1993). In August 2014, the Veteran underwent VA examination of his neck and shoulder disorders. The examiner diagnosed the Veteran with degenerative arthritis of the cervical spine and right shoulder and opined that these disorders were not caused by or a result of the Veteran's military service. Her stated rationale was that there was no medical nexus establishing causality between current complaints and military service. She found no statements regarding neck pain in February 1980. She indicated further that the Veteran was treated for a shoulder strain in May 1980, but it was noted that the Veteran was medically qualified to complete the term of his active service and that he was not medically discharged from the military. The examiner also relied on the fact that the Veteran has been out of the military for 31 years and fell off a house in January 2009. Unfortunately, the Board finds that a remand is required to obtain an additional VA examination and opinion. In this regard, the Board notes that the August 2014 VA examiner based her opinion on an inaccurate factual premise and failed to consider the Veteran's entire history. Specifically, the examiner stated that the Veteran did not have evidence of neck pain in February 1980. However, such pain was noted in his service treatment records. Moreover, the examiner did not consider or discuss whether the duties of the Veteran's military occupational specialty (MOS) of a medical service specialist could cause his neck/shoulder disorders. Such consideration and discussion is necessary, as the Veteran contended that it was the movement of transporting patients from the gurney to the bed that caused his neck/shoulder problems. See April 2010 Veterans Application for Compensation and Pension. Furthermore, the examiner did not consider or discuss the Veteran's statements regarding his symptoms since service. Notably, the Veteran asserted that his neck/shoulder problems began in service and have increased in severity since discharge in 1983. See July 2011 Correspondence; see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). The Board also recognizes that VA treatment records regarding the Veteran's bilateral shoulder disorder have also been associated with the claims file since the last VA examination. Such records show X-ray evidence of degenerative changes of the bilateral shoulders. Accordingly, on remand, the VA examiner is instructed to review and discuss this evidence. Further, in the initial remand in January 2014, the Board directed that the AOJ obtain treatment records from Jacobs Chiropractic Clinic dated from 1988 to present. It appears the AOJ attempted to obtain the records by sending two records requests. See March and April 2014 Third Party Correspondence. Thereafter, however, no response was received, and there does not appear to have been any follow-up by the AOJ as required under 38 C.F.R. § 3.159(e). As such, further development is required. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding records of pertinent medical treatment from VA or private health care providers. A specific request should be made to obtain treatment records from Jacobs Chiropractic Clinic dated from 1988 to present. If these records are unable to be obtained, appropriately notify the Veteran and his representative pursuant to 38 C.F.R. § 3.159 (e). 2. Then, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's neck and bilateral shoulder disorders. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner should opine as to whether: a) it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's neck disorder, to include as degenerative arthritis of the cervical spine, had its onset during or within one year of active service, or is otherwise related to active service; and b) it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's left and/or right shoulder disorder, had its onset during or within one year of active service, or is otherwise related to active service. In rendering these opinions, the examiner must consider and discuss: the Veteran's in-service report of neck pain in February 1980 and the August 2011 VAMC X-ray evidence of mild degenerative changes of the bilateral acromioclavicular and glenohumeral joints-as well as his duty MOS as a medical service specialist and his complaints regarding his neck/shoulder problems and treatment since service. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Finally, readjudicate the claims on appeal, as are listed on the title page of this Remand. If the decision is adverse to the Veteran, he and his representative shall be furnished a Supplemental Statement of the Case and provided with the opportunity to respond. The must then be returned to the Board for appellate review. No action is required of the Veteran until he is notified by VA. However, he is again advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, and his failure to report for a VA medical examination, may impact the determination made. 38 C.F.R. § 3.655 (2017). The Veteran also is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. The law indeed requires that all remands by the Board or the Court are to be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2014). 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) (2017).