Citation Nr: 1808513 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 08-21 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected type II diabetes mellitus. 2. Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected type II diabetes mellitus. 3. Entitlement to service connection for a spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. G. Perkins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to August 1970, including in the Republic of Vietnam. He died in March 2014. The Appellant is his widow. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. These matters were previously before the Board in May 2012 and April 2014. In May 2012, the Board remanded the claims for further development. The claims returned to the Board in April 2014 but were dismissed due to the Veteran's death in March 2014. The Appellant was formally substituted in place of the Veteran in August 2017. The claims are now properly before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Further development is required prior to adjudicating the claims. During his lifetime, the Veteran contended that although he did not directly injure his back while serving on active duty in Vietnam, his spine disability was caused by the weight he had to carry regularly as an infantryman. The rationale from the June 2012 VA medical opinion is inadequate; a supplemental opinion is warranted. Barr v. Nicholson, 21 Vet. App. 303 (2007). The June 2012 examination included diagnoses of thoracic kyphosis and degenerative disc disease of the lumbar spine. The examiner provided the opinion that the Veteran's lumbar spine condition is less likely than not to be service connected, without providing any rationale. The rationale for the opinion that the thoracic kyphosis, which preexisted service, was not aggravated during service is also inadequate. The basis of that determination does not appear to address in-service aggravation; it addresses aggravation since service. Regarding the Veteran's bilateral shoulder disabilities, the June 2012 examiner's rationale for the negative opinion was that there is no objective data to support a contrary opinion. However, record includes a January 2008 statement from the Veteran's treating physician that the Veteran's diabetes mellitus is a pre-disposing condition to his left shoulder disability and also an article from an orthopedic treatise stating that adhesive capsulitis occurs in 10 to 20 percent of individuals with diabetes. Additionally, the Appellant raises asserts that according to the National Institutes of Health, diabetes is a risk factor for adhesive capsulitis due to diabetes causing poor perfusion to the shoulders. On remand a supplemental medical opinion must be obtained that addresses whether it is likely as not that poor perfusion or another pathophysiology stemming from the Veteran's service-connected diabetes could cause or aggravate the Veteran's bilateral shoulder disabilities. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file, to include a complete copy of this remand to a qualified examiner to obtain a supplemental medical opinion as to nature and likely etiology of diagnosed thoracic kyphosis and degenerative disc disease of the lumbar spine and the bilateral shoulder impingement and degenerative joint disease of the right acromioclavicular joint. Based on the review of the record, the examiner should answer the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's lumbar spine disability is causally related to active service? (b) Is it at least as likely as not that the Veteran's pre-existing thoracic kyphosis underwent a permanent increase in severity during service (November 1969 to August 1970)? If the answer is yes, was the permanent increase in severity during service due to the natural progression of the condition? (c) Is it as least as likely as not that the bilateral shoulder impingement or degenerative joint disease of the right acromioclavicular joint is causally related to active service? (d) if the answer to (c) is no, then is it at least as likely as not that the bilateral shoulder impingement or degenerative joint disease of the right acromioclavicular joint was caused or aggravated by the Veteran's service-connected diabetes? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. In answering this question, the examiner should specifically consider, and discuss as necessary, the following: (i) the January 2008 statement from the Veteran's treating physician that diabetes mellitus is a pre-disposing condition to his shoulder disability; (ii) an article from an orthopedic treatise stating that adhesive capsulitis occurs in 10 to 20 percent of individuals with diabetes, and: (iii) the contention that according to the National Institutes of Health, diabetes is a risk factor for adhesive capsulitis due to diabetes causing poor perfusion to the shoulders. Any opinion expressed by the VA examiner must be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, provide the appellant and her representative with a supplemental statement of the case and an opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters 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 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). _________________________________________________ M. E. LARKIN 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).