Citation Nr: 1808473 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 16-62 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: James M. McElfresh, II, Agent ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to February 1966. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In April 2016, the RO denied claims of service connection for lung disorder, heart disorder, prostate cancer, diabetes, hypertension, and hypertensive nephrosclerosis, to include as secondary to asbestos exposure, jet fuel and lead poisoning, and Camp Lejeune contaminated drinking water. The Veteran disagreed with the denials and a statement of the case was issued in December 2017. In his December 2017 VA Form 9, the Veteran perfected his appeal of the matters and asked that the record be held open 60 days in order to afford him the opportunity to submit additional evidence in support of his claims. Consequently, the matters are not ripe for appellate disposition and have not been certified to the Board. Thus, the Board does not currently have jurisdiction over the claims. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends he is entitled to service connection for a bilateral shoulder disability. In his May 2016 claim, he maintained that his bilateral shoulder disability was secondary to his service-connected back disorder. In his notice of disagreement, the Veteran further asserted that his bilateral shoulder disability was secondary to his military occupational specialty as a cook and was due to repetitive shoulder damage syndrome, as well as secondary to his back disorder. Finally, in his substantive appeal, the Veteran stated that damage to his right shoulder forced him to over compensate and thus, resulting in a left shoulder disorder. The Veteran was afforded a VA examination in August 2016. The examiner found there was no pathology to support a left shoulder disorder. With regard to the right shoulder, the examiner opined the Veteran's right shoulder was less likely than not proximately due to or the result of the Veteran's service connected back disorder. The examiner failed to address aggravation. In November 2016, an additional opinion was sought with regard to direct causation. The examiner opined that a bilateral shoulder condition was less likely incurred in or caused by service. The examiner also indicated that no diagnostic studies had been performed and that the diagnosis of right labral tear in August 2016 could not accurately be established based on physical examination alone and that the diagnosis of tendonitis rendered at the time was not currently supported by the evidence. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examination and the opinion did not address aggravation of a bilateral shoulder disability by the service-connected back disability nor did they address secondary causation of the left shoulder due to over compensation resulting from a right shoulder disability. Moreover, the August 2016 examiner failed to conduct diagnostic studies resulting in the November 2016 VA examiner to call into question the existence of a current bilateral shoulder disorder. Thus, the opinions and the rationale of both examiners are not sufficient with regard to the issue of the nature and etiology of the Veteran's bilateral shoulder disability. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported with an analysis); Nieves-Rodriguez, 22 Vet. App. 295, 301(2008) (noting that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion"). Given the inadequacies in the VA examination and opinions, a remand is warranted in order to provide the Veteran with an additional VA examination that addresses the questions delineated below. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The RO should schedule the Veteran for an appropriate VA examination. The electronic record, including a copy of this remand, must be made available to the examiner as part of the examination, and the examiner must indicate in his/her report whether the electronic record was reviewed. All indicated tests and diagnostic imaging studies must be completed. a) Thereafter, the examiner should provide an opinion as to whether the Veteran currently has a bilateral shoulder disability and if so, whether it is at least as likely as not (50 percent or greater probability) that the bilateral shoulder disability had its onset during active service or is any way related to his active duty service, to include as due to his duties as a Navy cook. In answering this question, the examiner must address the Veteran's assertions of repetitive use of the shoulders, to include stirring pots and lifting heavy pans. b) (i) The examiner should additionally address whether it is at least as likely as not that a diagnosed right shoulder disability is proximately due to, the result of, or aggravated by (beyond the natural progression of the disease) the service-connected lumbar spine disability. (ii) With regard to the left shoulder, the examiner should address whether it is at least as likely as not that a diagnosed left shoulder disability is proximately due to, the result of, or aggravated by (beyond the natural progression of the disease) the service-connected lumbar spine disability and/or right shoulder disability. The Veteran's military occupational specialties, his statements regarding the history of in-service incidents and continued complaints of shoulder problems, the objective medical findings from his military service, and any other pertinent clinical findings of record, must be considered and discussed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. The examination report must be reviewed to ensure it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. If upon completion of the above action the claims remain denied, the case should be returned to the Board after compliance with appellate procedures. 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). This appeal must be afforded expeditious treatment. The law requires that all issues 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. §§ 5109B, 7112 (2012). ______________________________________________ E. I. VELEZ 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).