Citation Nr: 1804563 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-23 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for torn right bicep tendon, to include as secondary to the service-connected disability of right shoulder rotator cuff tendinitis. REPRESENTATION The Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2005 to March 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ) in July 2017. A transcript of the hearing is of record. The Board notes that at the hearing, the Veteran's representative stated that the Veteran is seeking service connection both on a direct and secondary basis. The issue has been clarified on the title page. The Veteran's claim for entitlement to service connection for a torn right bicep tendon was initially denied in a May 2013 rating decision. However, because the Veteran submitted a statement in August 2013, along with treatment records not previously associated with the claim file and pertinent to his claim, the Veteran submitted new evidence within one year of the May 2013 rating decision; thus, the Veteran's claim was reconsidered pursuant to 38 C.F.R. § 3.156 (b) in the April 2014 rating decision on appeal. Accordingly, the Board finds that the issue on appeal is one of entitlement to service connection, and not whether new and material evidence has been received to reopen the claim of entitlement to service connection for a torn right bicep tendon. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that further development is needed prior to final adjudication of the issue on appeal. Specifically, the Board finds that additional treatment records must be obtained and that the Veteran should be afforded a new VA examination. First, regarding the outstanding treatment records, at the July 2017 hearing, the Veteran indicated that he is receiving private treatment for his torn bicep and that he was seen as late as this year. The Board will remand to obtain these outstanding treatment records. In addition, the Board finds that a new VA examination is needed. The Veteran was afforded a VA examination in April 2014, at which time the examiner diagnosed the following disabilities: a SLAP tear; tendinitis rotator cuff; and biceps tendonitis. The examiner opined that it was less likely than not (less than 50 percent probability) that Veteran's right torn bicep was secondary to his right shoulder condition. However, the examiner did not address service connection on a direct basis, nor did the examiner address whether the claimed disability was aggravated by the Veteran's right shoulder rotator cuff tendinitis. Due to the shortcomings of the examination, and conscious of the fact that the Veteran indicated at the July 2017 hearing that he would like a new medical opinion, the Board will remand to afford the Veteran a new examination and obtain a new opinion. Accordingly, the appeal is REMANDED for the following action: 1. After securing all necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the claimed disability on appeal. Attempts to obtain such records should be documented in the claim file. If identified records could not be obtained, this should be noted in the claim file. 2. After completing the above, schedule the Veteran for the appropriate VA examination to address the etiology of his claimed torn right bicep tendon disability, to include as secondary to the service-connected disability of right shoulder rotator cuff tendinitis. The examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. After examining the Veteran, the examiner should provide an opinion addressing whether the Veteran's torn right bicep tendon/ SLAP tear disability was at least as likely as not (i.e., a 50 percent or greater probability) caused by his active duty service or, if preexisting service, was aggravated therein. In addition, the examiner should provide an opinion as to whether it is more likely than not (i.e., a 50 percent or greater probability) that the torn right bicep tendon/ SLAP tear disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's service-connected right shoulder rotator cuff tendinitis disability. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues 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). _________________________________________________ E. I. VELEZ 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).