Citation Nr: 1806439	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  12-27 891	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Entitlement to service connection for a right shoulder disability, to include osteoarthritis.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Counsel


INTRODUCTION

The Veteran served on active duty from December 1983 to October 1994, with additional service in the Reserves thereafter.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in July 2011 by a Department of Veterans Affairs (VA) Regional Office (RO).

This matter is REMANDED to the Agency of Original Jurisdiction (AOJ).  The Veteran will be instructed if any further action is required on his part.


REMAND

The Veteran seeks service connection for a right shoulder disability which he asserts had its onset in service.  The Veteran described an injury to his right shoulder while playing rugby in service in 1992.  The service treatment records show that the Veteran complained of pain in the right shoulder at the time of service separation.  The Veteran has also described a reinjury to his right shoulder, a dislocation, occurring during his Reserve service in about 2005 when he threw a heavy bag over his shoulder and heard a popping sound.  It does not appear that the Veteran's Reserve treatment records have been sought for verification of this incident.  Efforts to obtain all outstanding service treatment records, to include from Reserve service, should be undertaken on remand.

The Veteran was afforded a VA examination in May 2011 which found evidence that the Veteran has arthritis in the right shoulder acromioclavicular (AC) joint.  However, the VA examiner was unable to offer an opinion as whether any right shoulder disability was due to his military service without resorting to speculation.  As such, the VA examination is of no evidentiary value in adjudicating the Veteran's current claim and is not sufficient.  See Jones v. Shinseki, 23 Vet. App. 382 (2010) (stating that to the effect that before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence).  A new VA examination is warranted on remand. 


Accordingly, the case is REMANDED for the following actions:

1. Ask the Veteran to identify any sources of treatment or evaluation for his right shoulder, to include private and VA treatment providers.  These records should be requested and added to the claims file for consideration in the adjudication of the claim.  Additionally, request the Veteran provide, as close as possible, the date of when in the Reserve service he had the pain in 2005.

If, after all due diligence, it is determined that any of the records are unavailable or further efforts to obtain them would be futile, the Veteran and his representative should be so advised in accordance with the provisions of 38 C.F.R. § 3.159(e).

2. After any response in #1, request from the appropriate federal records custodian(s) all outstanding service treatment records, to include those from Reserve service (tailored by Veteran's response in #1, if received) and any inpatient treatment records from active duty service.

If, after all due diligence, it is determined that any of the records are unavailable or further efforts to obtain them would be futile, the Veteran and his representative should be so advised in accordance with the provisions of 38 C.F.R. § 3.159(e).

3. Once all outstanding records have been added to the claims file, afford the Veteran an appropriate VA examination to determine whether it is at least as likely as not (probability 50 percent or greater) that any current right shoulder disability was incurred in service, to include the injuries described by the Veteran in active duty service playing rugby and in Reserve service.  

The examiner is to provide a comprehensive rationale for any opinions rendered.  Access to the complete electronic claims file should be provided to the examiner for review to become familiar with the pertinent medical history.
 
4. Then readjudicate the issue on appeal.  If the benefit sought on appeal is not granted in full, then issue a supplemental statement of the case (SSOC) and provide the Veteran and his representative an opportunity to respond.


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 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).




______________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs