Citation Nr: 1754953 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-32 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for left shoulder disability, to include as secondary to a service-connected disability. ATTORNEY FOR THE BOARD J. I. Tissera, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1995 to June 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Based on the medical evidence of record, the Board finds it appropriate to recharacterize the Veteran's claim for a left shoulder disability, to include as secondary to a service-connected disability. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (what constitutes a claim cannot be limited by a lay veteran's assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, another remand is required in this case for the issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. The Veteran filed his claim for service connection for a left shoulder disability secondary to his service-connected right ankle in September 2009. A subsequent correspondence provided two possible etiologies for the left shoulder disability based on his service-connected right ankle locking up - a fall in December 2007 and a motorcycle accident in November 2008. VA examinations were conducted in June 2015, November 2016, and June 2017 to determine whether the Veteran's left shoulder disability was directly service-connected or was caused or aggravated by his service-connected right ankle. The examiner determined it was less likely than not that the Veteran's left shoulder disability was directly service-connected or secondary to his service connected right ankle, and that the Veteran's current disability was caused by an unspecified advanced disease. Upon review of the Veteran's medical records, the Board identified a third possible etiology for the Veteran's left shoulder disability. The Veteran was service-connected for degenerative joint disease of the left knee since separation from service. In a VA treatment record dated October 1, 2007, the Veteran reported that two and a half weeks prior, his left knee locked and caused him to fall. He caught himself on his bilateral hands but has since had constant pain in his left shoulder with movement. There is no medical opinion regarding this possible etiology for the Veteran's left shoulder disability. VA must provide a VA medical examination or obtain a nexus opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that a medical opinion should be obtained to determine if the Veteran's left shoulder disability was caused or aggravated by his fall due to his-service connected left knee locking in September 2007. In light of the foregoing, this case must be remanded again for the actions set forth below. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain copies of any outstanding records pertinent to the Veteran's claims. Obtain, to the extent possible, all outstanding VA records of pertinent medical treatment. All records/responses received must be associated with the electronic claims file. 2. Schedule the Veteran for a VA examination with an appropriately qualified examiner to obtain a medical opinion clarifying whether the Veteran has a current left shoulder disability that is related to a service-connected disability. The claims file must be provided to and be reviewed by the examiner. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. (a) The examiner should provide an opinion as to whether the Veteran's left shoulder disability was at least as likely as not (50 percent or greater probability) caused by or is related to his service-connected left knee disability. Specifically, the examiner must consider the Veteran's contention that a left shoulder disability was incurred in a September 2007 accident. The examiner should accept that in September 2007, the Veteran's service-connected left knee locked and caused him to fall on the left shoulder. (b) The examiner should provide an opinion as to whether the left shoulder disability was at least as likely as not (50 percent or greater probability) aggravated (permanently worsened beyond the natural progress of the disorder) by his service-connected left knee disability, or a fall caused by the service-connected left knee disability. Specifically, the examiner must consider the Veteran's contention that the left shoulder disability was aggravated by a September 2007 accident. The examiner should accept that in September 2007, the Veteran's service connected left knee locked and caused him to fall on the left shoulder. (c) If the examiner finds that the left shoulder disability is not as likely caused by, related to, or aggravated by his service connected left knee disability, provide an opinion regarding the etiology of the Veteran's left shoulder disability. If the etiology of the left shoulder disability was not related to trauma, provide an explanation as to the possible etiology of the left shoulder disability. The examiner should consider the Veteran's lay statements with regard to onset and continuity of symptomatology of his disability. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resorting to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 3. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should re-adjudicate the Veteran's claim. If the claim is denied, supply the Veteran with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claim folder should be returned to the Board for further appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran 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. §§ 5109B, 7112 (West 2012). _________________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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) (2017).