Citation Nr: 1807124 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-18 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a right shoulder disability, to include impingement syndrome and degenerative arthritis. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for a neck disability. 5. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left knee/leg disability. 6. Entitlement to a total rating based on unemployability (TDIU) due to service connected disabilities. REPRESENTATION Veteran represented by: Agnes S. Wladyka, Attorney ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service in the United States Army from October 1983 to June 1984. He also had several periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the United States Army Reserves. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied entitlement to the benefits sought. The Veteran appealed the underlying decision in a Notice of Disagreement received in October 2011. This matter was most recently before the Board in April 2015 when it was remanded for additional development. The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND With respect to the Veteran's claims, in July 2011, March 2014, and November 2016 statements he indicated that he regularly received VA treatment; specifically, he reported ongoing treatment for all of his disabilities at the VA Medical Center in East Orange, New Jersey. However, the only and most recent VA record from that facility of record is dated in February 2005. This record notes that the Veteran was married by the VA chaplain and does not address any healthcare issues. In this regard, there is no indication of record that the AOJ attempted to obtain the Veteran's complete outpatient treatment records from the VA Medical Center in East Orange, New Jersey. Consequently, as the aforementioned treatment records are potentially relevant to the claim, further development to obtain these records is in order. 38 C.F.R. § 3.159 (c)(2)(2017); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In addition, in his March 2014 Authorization and Consent to Release Information to VA form, the Veteran asserted that he received ongoing treatment from H.K., M.D. and Dr. Rosania, for various problems to include his back, shoulders, and knee. However, records of these reports of treatment have not been obtained. As the aforementioned private treatment records are potentially relevant to the claim, further development to obtain these records is in order. 38 C.F.R. § 3.159 (c)(1). Regarding the claim of service connection for a right shoulder disability, the Veteran underwent a VA examination in April 2011, during which he reported daily right shoulder pain since his fall during service. The examiner diagnosed right shoulder impingement syndrome and degenerative joint disease. The examiner, however, found that the Veteran's current right shoulder disorders were not related to his service. In providing the opinion, the examiner noted a treatment record documenting the Veteran's right shoulder injury due to a fall during ACDUTRA on February 28, 2008; however, he offered a negative opinion because the Veteran had not received any treatment for his right shoulder since the in-service injury. The Board finds this opinion inadequate to adjudicate the claim. Specifically, the opinion did not consider the Veteran's contentions that he has experienced daily right shoulder pain since the in-service injury. Further, the examiner did not address or provide an etiology for the Veteran's current right shoulder diagnoses. Accordingly, a medical opinion addressing the etiology of the Veteran's current right shoulder disorders diagnosed during the appeal period is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Finally, the outcome of the TDIU claim is in part dependent on the outcome of the service connection claims on appeal. Therefore, the TDIU claim is inextricably intertwined with the service connection claims and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include all VA outpatient treatment records from the VA Medical Center in East Orange, New Jersey. In addition, the AOJ shoulder also obtain outstanding private treatment records from H.K., M.D. and Dr. Rosania, as identified by the Veteran. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). 2. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriately qualified health care professional who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. The examiner should review the entire record, including service treatment records. Based on review of the record, the examiner should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the Veteran's currently diagnosed right shoulder disability, to include impingement syndrome and degenerative joint disease, originated during service or is/are otherwise etiologically related to the Veteran's service. In this analysis, the examiner must discuss: the Veteran's contentions of daily right shoulder pain since the February 2008 in-service injury. For purposes of the opinions, the examiner should assume that the Veteran is a credible historian. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The AOJ should also undertake any other development it determines to be warranted. 4. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran and his representative need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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). _________________________________________________ B. MULLINS 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).