Citation Nr: 18144913 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-28 995 DATE: October 25, 2018 REMANDED The issue of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1962 to February 1965. This matter is before the Board following his appeal of an October 2014 rating decision. The issue of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a right shoulder disability is remanded. While further delay is regrettable, the Board finds that remand is required for a new examination. While an opinion has been obtained in this case, it did not fully address the Veteran’s contentions. Specifically, the July 2014 opinion did not address the Veteran’s assertion that his right shoulder disability was misdiagnosed and/or improperly treated by VA. In this regard, the Veteran asserts that he was referred to physical therapy for his right shoulder when he should have had surgery, and presumably contends that he has additional disability in his right shoulder as a result. Thus, an examination is necessary to determine whether the Veteran has any additional right shoulder disability as a result of improper VA treatment. The Board also finds that, on remand, regarding the Veteran’s assertion that he fell and hit his right shoulder due to leg or muscle weakness caused by Simvastatin prescribed by VA, the examiner should address a July 2012 notation that the Veteran “was thought to have had serious problems with radiculopathy but with [sic] the simvastatin was stopped all of his symptoms went away.” Finally, the Board finds that additional treatment records should be obtained to determine when the Veteran began Simvastatin. The available records do show that the Veteran was prescribed that medication in October 2010, around when his falls reportedly began. However, it is unclear how long he had been taking the medication at that point, or exactly when his falls began. Thus, VA and private treatment records dated prior to October 2010 should be obtained. The matter is REMANDED for the following action: 1. With any assistance needed from the Veteran, obtain VA and private treatment notes dated prior to October 2010, to include prescription records, as well as updated treatment records dating from July 2016. 2. After the above has been completed to the extent possible, schedule the Veteran for an examination by a neurologist or orthopedist. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: (a) Identify all currently diagnosed disabilities of the right shoulder. In doing so, the examiner should note that the term “current” means occurring at any time during the pendency of the Veteran’s claim; i.e., from April 2014 onward. The disability need not be present at the time of the examination; rather it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the examination. (b) State whether it is at least as likely as not (50 percent probability or greater) that any right shoulder disability was caused by or contributed to by VA’s initial diagnosis or treatment of the Veteran’s right shoulder beginning in 2011, or by VA’s prescription of Simvastatin. Please explain why or why not, specifically addressing (1) VA’s initial right shoulder diagnosis; (2) the Veteran’s complaints of falls related to leg weakness that he felt was related to Simvastatin; and, (3) the July 2012 VA notation that the Veteran’s leg symptoms resolved after stopping Simvastatin. (c) If VA treatment (either through prescription of Simvastatin or referral to physical therapy) caused or contributed to any right shoulder disability, what is the likelihood that there was carelessness, negligence, lack of proper skill, error in judgment or similar instances of fault on VA’s part in the diagnosis and/or treatment of the Veteran’s right shoulder (including referral to physical therapy) and/or in prescribing Simvastatin? (d) If VA treatment caused or contributed to a right shoulder disability, was the disability an event not reasonably foreseeable? In answering this question, the examiner is asked to consider whether falls related to Simvastatin or any progression of or additional right shoulder disability was a risk that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided--not what the treating physicians might have actually foreseen in treating the Veteran. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Fagan, Counsel