Citation Nr: 1804416 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 08-23 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left shoulder disability, to include as secondary to the service-connected gout and/or lumbar strain. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from June 1969 to July 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2010 a travel Board hearing was held and the Veteran and his spouse testified before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In a February 2017 letter from the Board, the Veteran was notified that the VLJ who conducted the June 2010 hearing was no longer with the Board, and he was presented with an opportunity to request another hearing. The Veteran did not request a new hearing. When this case was most recently before the Board in April 2017, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, this matter must be remanded because there was not substantial compliance with the Board's April 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). In the April 2017 remand, the Board found that in a July 2016 VA addendum opinion (associated with VBMS in August 2016) the examiner did not discuss whether the left shoulder disability may have been aggravated by the Veteran's service-connected lumbar strain or gout. Further, despite the Veteran's history of gout, the examiner opined that the left shoulder disability was not caused by gout because there was no evidence that the Veteran had gout. Specifically, the July 2016 VA examiner stated that no gout was identified by multiple X-rays to the shoulders; tendonitis was most often caused by overuse or repetitive use. There was no functional correlation with repetitive shoulder use and lumbar spine disability (exception would be a person that was paralyzed such as a paraplegic that would use a wheelchair and then one could make a direct correlation with shoulder strain/tendonitis), but this was not the case with the Veteran's lumbar disc height loss and disc bulge. In response to the remand, the same VA examiner provided an addendum opinion in June 2017 in which he essentially copied the prior July 2016 opinion, adding that the Board noted that the Veteran had a history and diagnosis of gout in multiple joints. Thus, there is no opinion of record that addresses the Veteran's contention that his left shoulder disability is secondary to his service-connected gout and/or lumbar strain based on the theory that one or both conditions have aggravated his left shoulder disability, nor is there an opinion that addresses whether the shoulder disability is caused by the Veteran's gout. Therefore, the Board finds that an additional opinion must be obtained to determine whether the Veteran's left shoulder disability is caused by or aggravated by his service-connected lumbar strain and/or gout. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum medical opinion clarifying the nature and etiology of the Veteran's left shoulder disability. The opinion should be provided by a different examiner than the one who provided the June 2017 opinion, Dr. D.D.J. If deemed necessary by the examiner, afford the Veteran a VA examination for a left shoulder disorder. The entire electronic claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include discussion of the Veteran's documented medical history and assertions. Based upon a review of the relevant evidence of record, the VA examiner should offer an opinion as to whether it is at least as likely as not (probability 50 percent of more) that the left shoulder disability is caused or aggravated by service-connected lumbar strain and gout. The term "aggravated" in this context refers to a chronic worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology that resolve with a return to the baseline level of disability. If the opinion is that service-connected lumbar strain and gout aggravated the Veteran's left shoulder disability, the VA examiner should specify, so far as possible, the degree of disability resulting from such aggravation. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that 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 causation as it is to find against it. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. If the examiner cannot provide an opinion without resorting to mere speculation, such should be so stated along with a supporting rationale. 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 the particular question. 2. To help avoid future remand, VA must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, undertake corrective action before the matter is returned to the Board. See Stegall, 11 Vet. App. 268. 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 preceding paragraph, the Veteran's claim should be readjudicated. If the claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for an appellate decision. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. J. ALIBRANDO 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) (2017).