Citation Nr: 1807622 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14- 25 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for a right shoulder disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from May 27, 1971 to September 26, 1971, from May 27, 1972 to June 10, 1972, from May 19, 1973 to June 2, 1973, from May 18, 1974 to June 1, 1974, and from May 31, 1975 to June 14, 1975 with additional periods of inactive duty training with the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board notes that the Veteran testified before the undersigned Veterans Law Judge in September 2017. A transcript of that hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At the Veteran's September 2017 Board hearing, he explained that his right shoulder condition had worsened since his most recent VA examination, which was conducted in June 2013. According to McLendon v. Nicholson, when required to adequately adjudicate the claim, VA must provide a medical examination assessing the Veteran's claimed disabilities or conditions. See generally 20 Vet. App. 79 (2006). Such a medical examination is adequate when it describes the disability in sufficient detail such that the examiner's evaluation of the disability is "fully informed." Barr v. Nicholson, 21 Vet App. 303, 311 (2007). A medical examination is "fully informed" when the examiner has sufficient facts upon which to base an opinion relevant to the issue at hand. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). This examination must also be sufficiently contemporaneous so as to assess the current nature, extent, and severity of the Veteran's service-connected disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). When the evidence indicates that there has been a material change in the disability and the evidence of record is too old, or that the current rating may be incorrect, VA has a duty to conduct a new examination. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). As such, because the Veteran's service-connected right shoulder condition may have worsened, another examination must be conducted to ascertain the current severity of his right shoulder disability. The Board observes that the January 2013 Disability Benefit Questionnaire (DBQ) noted right shoulder tendinopathy with impingement syndrome and AC separation that are not a normal progression of right shoulder strain, and a June 2013 supplemental opinion commented that there were no objective findings "specific enough" to support residuals of right shoulder strain in 1977. The June 2013 supplemental opinion also concluded that there must be some traumatic event that occurred after the Veteran's separation from active duty service given that his October 1977 X-rays did not reveal AC separation. The June 2013 supplemental opinion also found that because tendinopathy implies a repetitive injury with lifting and carrying it was not a result of muscle or joint strain, the Veteran's current right shoulder condition could not be associated with service. However, the Veteran submitted a Notice of Disagreement (NOD) explaining that the diagnosis discussed with him in the 1970s was not right shoulder strain residuals and that a doctor had affirmatively discussed the possibility of surgery with him at that time, which he declined to pursue at that time. The Veteran's original March 1977 service connection application was filed for residuals of torn ligaments, right shoulder. Moreover, the Veteran has since received follow-up care through VA for his right shoulder condition. An October 2013 orthopedic consultation completed by an orthopedic surgeon contained a review of X-ray findings, and concluded that the Veteran's X-rays indicated that he had acromioclavicular, subacromial, or acromioclavicular pathology likely status post-trauma from his 1970s injury that had just matured at this point. The consultation notes indicate that imaging demonstrated a type 2 acromion and a corticated bony body in between the acromion and the clavicle that may be the result of trauma in the past or a congenital or gross-centered that ossified. The consultation note also explains that X-ray imaging was consistent with mild to moderate osteoarthritis in the glenohumeral joint. A later October 2014 orthopedic surgery consultation noted that the Veteran tested positive on impingement testing. The consultation also detailed Magnetic Resonance Imaging (MRI) results which showed a partial tear of the supraspinatus, AC joint osteoarthritis, and bone spurring. The MRI results were noted to be from a non-VA treatment provider. The Veteran was assessed as having partial rotator cuff tear as well as impingement syndrome. Consistent with the benefit-of-the-doubt principle, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). As such, to the extent that the Veteran currently has multiple right shoulder conditions that may not be related to the natural progression of his right shoulder condition, each right shoulder diagnosis should be addressed, and for those conditions that are found not to be service-connected, the examiner must state whether it is possible to separate the effects of the Veteran's service-connected right shoulder disabilities from his non service-connected right shoulder disabilities. Additionally, the Board notes that current only January 2013 to April 2014 VA treatment records are associated with the claims file. As a review of the record reveals that the Veteran is currently in receipt of VA treatment for his right shoulder condition, all outstanding VA treatment records including any relevant treatment records that predate January 2013 should be procured. Finally, the Veteran's March 2014 VA treatment records indicate that the Veteran has had some right shoulder treatment completed at non-VA facilities and that some of his right shoulder treatment may have been "fee-base[d]" out, given that the Veteran resides in North Carolina. Accordingly, on remand, the Veteran should be provided the opportunity to submit any relevant private treatment records in his possession or submit a release authorization so that any relevant private treatment records may be procured for him. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records relevant to his right shoulder claim and associate those records with the claims file. Efforts to obtain these records should be documented in the claims file. If these records cannot be located the Veteran must be notified. 2. Provide the Veteran with a release form for any outstanding private medical records pertinent to his right shoulder disability. If he returns the requested information, attempt to obtain the records. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his right shoulder disability to include any neurological manifestations. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner should diagnose all current right shoulder disabilities and should discuss all current right shoulder diagnoses including: (1) right shoulder tendinopathy; (2) AC separation: (3) osteoarthritis; (4) rotator cuff tear; and (5) impingement syndrome. The examiner should also review the October 2013 and March 2014 orthopedic surgeon consultation notes and other relevant treatment records that have been procured. i. For each diagnosed condition the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder condition constitutes a natural progression of his service-connected right shoulder injury residuals. The examiner is advised that the Veteran's right shoulder injury was initially evaluated as right shoulder strain and damaged ligaments in October 1977. The examiner should comment on the October 2013 orthopedic surgery consultation records and the Veteran's NOD. ii. If any of the diagnosed right shoulder conditions are found to be less likely as not a natural progression of the Veteran's service-connected right shoulder injury residuals, the examiner must indicate whether it is possible to separate the effects of the service-connected right shoulder disability from the nonservice-connected condition or conditions. c. Taking into account the evidence in the claims file and the Veteran's lay statements, the examiner must determine the current severity of the Veteran's right shoulder disability, and its impact on his daily activities and capacity for work. The examiner should test the range of motion for the Veteran's right shoulder during active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so (i.e. safety, practicality etc.). The examiner should attempt to estimate additional functional loss of the right shoulder due to repetitive use and/or flare-ups. In making this determination the examiner is specifically directed to ascertain adequate information-i.e., frequency, duration, characteristics, severity, or functional loss-regarding the Veteran's flares by any available means, to include the Veteran's lay statements and all other evidence of record. Testing should include an assessment for any neurological manifestations related to the Veteran's right shoulder. d. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 4. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. After undertaking any necessary additional development, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page) 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). S. L. Kennedy 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).