Citation Nr: 1803139 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 12-22 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1971. This includes his active duty service as a cadet at the U.S. Military Academy at West Point from 1963 to 1967 and in the U.S. Army from June 1967 to July 1971. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In May 2015, the Board denied the Veteran's claim for entitlement to service connection for a right shoulder disorder. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In an August 2017 Memorandum Decision, the Court vacated the Board's May 2015 decision and remanded this matter for further proceedings consistent with its decision. Based on a review of the Court's decision and the Veteran's claims file, the Board concludes that this matter is not yet ripe for readjudication. Accordingly, 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 that will be occasioned by this remand, further development is necessary to ensure compliance with the Court's decision and to afford the Veteran the assistance that he is due. The Veteran contends that his right shoulder disorder, claimed as arthritis, is etiologically related to an injury incurred during a wrestling match while the Veteran was a plebe at West Point. The Board notes that the Veteran is service-connected for a right-elbow injury that occurred during the same wrestling match, and some of the Veteran's West Point medical records are missing from the Veteran's claims file. The Veteran further contends that the detonation of a C4 device during Ranger School in late 1967 and the detonation of a land mine while on patrol in Vietnam in January 1969 aggravated the right shoulder injury he suffered as a West Point cadet. The Court vacated the Board's decision on three grounds: First, the Court held that the Board inappropriately made medical determinations rather than relying on those of a medical professional when evaluating the chronicity of the Veteran's symptomatology. Second, the Board erroneously relied on an inadequate October 2013 VA examination. The VA examiner concluded that the Veteran's right shoulder disorder was less likely than not (less than 50 percent probability) incurred in or caused by an in-service right shoulder strain. The VA examiner reasoned that a 2004 motor vehicle accident likely caused the Veteran's right shoulder disorder because the Veteran had no complaints regarding his shoulder before that accident. The Court observed that the VA examiner focused too much attention on the 2004 motor vehicle accident and failed to adequately rationalize the opinion against service treatment records and West Point treatment records documenting in-service right shoulder injuries. The Court concluded that there is no competent medical evidence of record regarding (1) whether the Veteran had arthritis of the right shoulder beginning in active service or within one year after active service, and (2) whether that arthritis have been continuously present since active service. Third, the Court held the Board did not adequately address statements favorable to the Veteran's claim from his West Point classmates, long-time friends, and family concerning his injuries while on active duty and his right shoulder pain following active service. In light of the Court's opinion, and the state of the record on appeal, additional development is required prior to appellate review. VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary before reaching a decision on a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Because the October 2013 VA examination is inadequate, the Veteran must be provided a new VA examination. Moreover, the AOJ should obtain up-to-date or otherwise outstanding service, VA medical center, or private treatment records, if any, prior to the VA examination. Accordingly, the case is REMANDED for the following action: 1. To the extent they are available, obtain all pertinent service, VA medical center, or private treatment records not yet associated with the Veteran's claims file. 2. Schedule the Veteran for a VA examination with a qualified medical professional. The Veteran's entire claims file, including a copy of this remand and the Court's August 2017 memorandum decision, must be made available to the examiner for review. The VA examiner should indicate that the claims file was reviewed. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's right shoulder disorder was caused by or is otherwise etiologically related to his active service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. Note: The VA examiner should specifically address the following questions: (1) Whether the Veteran had arthritis of the right shoulder beginning during service or within one year after service? (2) Has that arthritis been continuously present since service? In answering these questions, the VA examiner should consider the Veteran's lay statements and statements from the Veteran's West Point classmates, long-time friends, and family submitted in support of the Veteran's claim. If an opinion cannot be rendered without resorting to speculation, the VA examiner should explain why it would be speculative to respond. 3. After completing the above actions 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 supplemental statement of the case must be provided to the Veteran and his representative, and 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 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 (2012). _________________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).