Citation Nr: 18151944 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-38 526 DATE: November 20, 2018 REMANDED The issue of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional left shoulder disability resulting from 2011 and 2013 VA left shoulder surgeries, is remanded The issue of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional left elbow disability resulting from 2011 and 2013 VA left shoulder surgeries, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1970 to April 1972. This matter is before the Board following his appeal of an April 2015 rating decision. The claims for compensation under 38 U.S.C. § 1151 are remanded. A review of the record reveals that remand is necessary for further development of the Veteran’s claims for compensation under 38 U.S.C. § 1151. Here, the Veteran is claiming additional disability stemming from VA treatment, including September 2011 and July 2013 failed left shoulder surgeries, as well as claimed improper post-surgical treatment. He also claims that, since the surgeries, he experiences fluid accumulation in the left elbow for which he wears a compression sleeve and that, at times, swells and is very painful. A medical opinion was obtained from a VA physician in April 2015 indicating that the 2011 and 2013 VA shoulder surgeries were “excellent” and that the post-operative surgical and physical therapy care received by the Veteran was “very appropriate” and “timely.” The VA physician also concluded that the Veteran’s left elbow symptoms were not related to the Veteran’s surgeries but, instead to lateral epicondylitis. Nevertheless, despite those opinions, the Board finds that further development of the record is necessary prior to adjudication of the Veteran’s claims, to include to obtain records and an addendum opinion. Initially, the Board finds that remand is necessary to obtain potentially relevant outstanding treatment records related to the left shoulder. In this regard, the April 2015 VA opinion references private treatment in Muskogee that the Veteran received for his left shoulder some time following his September 2011 surgery and, in May 2014, it was also noted that the Veteran was getting shoulder MRI results from VA to show a non-VA orthopedist. However, there are no treatment records associated with private treatment of the left shoulder. Additionally, the Board observes that in May 2012, the Veteran reported that, after his September 2011 surgery, he reinjured his left shoulder in a fall, and was getting ready to have another surgery. However, there are no records related to any fall or left shoulder reinjury, and the currently-associated VA treatment records appear to be incomplete. As such, the Board finds that all relevant outstanding treatment records pertaining to the Veteran’s left shoulder should be obtained. Additionally, the Board finds that an examination and addendum opinion should be obtained. In this regard, the Veteran has not yet been physically examined to determine whether he has any additional left shoulder or left elbow disability resulting from the surgeries or VA treatment, and the most recent treatment notes are dated in 2014. Thus, an examination should be provided. Furthermore, the Board observes that the April 2015 VA physician found that the Veteran’s (already presumptively service-connected) diabetes was actually triggered by the stress of the September 2011 left shoulder surgery, which “tipped” him into the diabetic range, and was not an event reasonably foreseeable. The physician further noted that, in his opinion, “the diabetes…and/or some untoward shoulder motion…was responsible for breakdown and need for subsequent…2nd surgery[] July 2013.” He continued that the presence of diabetes may have reduced some restoration from the second surgery, though through no fault of the VAMC staff. Such an opinion suggests that results of the second surgery may not have been reasonably foreseeable as a result of the Veteran’s diabetes, and such should be addressed. Additionally, an opinion should be obtained as to whether the Veteran has any left shoulder disability as a result of his service-connected diabetes. Finally, an addendum opinion should be obtained regarding the left elbow. Here, the April 2015 VA physician found that the Veteran’s left shoulder symptoms were the result of lateral epicondylitis, which the record shows preexisted his surgeries (and was diagnosed as early as May 2010, per VA treatment records). However, the Board notes that in March 2013, the Veteran’s left elbow symptoms were diagnosed as olecranon bursitis, which was not diagnosed prior to the 2011 surgery, and was not addressed by the VA physician in April 2015. Nor did the physician indicate whether there was any relationship between the Veteran’s left elbow symptoms and his left shoulder surgeries, to include whether his left elbow symptoms were the result of compensating for his left shoulder following surgery. The matter is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers, both VA and private, who have treated him for his left shoulder and left elbow disabilities. After securing the necessary release, the AOJ should request any relevant records identified which are not duplicates of those already contained in the claims file. Additionally, obtain relevant updated VA treatment records dating from 2014, as well as all outstanding treatment notes dating from at least as early as 2010 (relevant to the presence of additional disability). If any requested records cannot be obtained, the Veteran should be notified of such. 2. Then, after the above development is completed to the extent possible, schedule the Veteran for a VA examination. 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 (1) left shoulder disabilities and (2) left elbow disabilities. 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 2014 onward. The disorder 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) With respect to each diagnosed disability, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that such was caused by or contributed to by the Veteran’s September 2011 or July 2013 left shoulder surgery or post-operative care. Please explain why or why not. In providing this opinion, the examiner should comment on (1) the April 2015 opinion that diabetes was triggered by the September 2011 surgery and may have contributed to the need for the July 2013 surgery and/or reduced the results of the July 2013 surgery; (2) the diagnosis of olecranon bursitis in March 2013 versus lateral epicondylitis diagnosed prior to the surgeries; and, (3) any relationship between the left elbow disability and the left shoulder surgeries. (c) If either surgery caused or contributed to an identified 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 performing this surgery? In answering this question, the examiner is asked to address the significance of the diabetes diagnosis, and whether the Veteran received proper follow up care following the surgeries. (d) If the surgery caused or contributed to an identified disorder, was the disability an event not reasonably foreseeable? In answering this question, the examiner is asked to, again, address the significance of the diabetes diagnosis, and to consider whether any disability resulting from the 2011 or 2013 surgery 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. (e) State whether it is at least as likely as not that any current left shoulder disability was caused or aggravated by service-connected diabetes mellitus. In providing the foregoing opinion, please address the April 2015 VA physician’s opinion that the Veteran’s diabetes may have contributed to the need for or reduced the results of the July 2013 surgery. 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