Citation Nr: 1808564 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 12-12 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Booker, Associate Counsel INTRODUCTION The Veteran had active service from August 1956 to August 1958. This matter comes before Board of Veterans'Appeal (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Hartford, Connecticut. The Veteran testified at a videoconference hearing in April 2014 before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A copy of the hearing transcript is of record. In a letter dated July 2017, the Veteran was advised of the right to have another hearing before a new VLJ, as the previous VLJ was no longer with the Board. In his July 2017 response, the Veteran advised the Board that he did not wish to appear for a new hearing, and that the Board should consider the case based on the evidence of record. The Board granted the Veteran's claim to reopen the claim in May 2014 and remanded the case for further development. The Board also remanded the claim for further development in August 2015 and December 2015. In May 2016, the Board denied the claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2017, the Court granted a joint motion for remand. 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 appellant if further action is required. REMAND The parties to the May 2017 joint motion for remand found that the Board's decision denying entitlement to service connection for a right shoulder disability lacked appropriate development. In particular, the parties found that records concerning the Veteran's treatment for a four-part proximal humerus fracture incurred following a fall in 2003, as well as treatment records from a private hospital in Bristol, Connecticut and a private orthopedic physician in New Britain, Connecticut were not sought by VA prior to adjudication of the claim. Additionally, the parties noted that none of the VA medical examinations of record address the Veteran's 2003 fall in discussing his medical history as it relates to his right shoulder disability, rending the examinations inadequate since they were based on an inadequate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based on an inaccurate factual premise has no probative value."). Given this presentation, the parties found that further development was in order relative to the claim of entitlement to service connection for a right shoulder disability. Further, A.A., a private internist submitted a letter in January 2018 stating that the Veteran reported that he dislocated his right shoulder while in service, and that this in-service right shoulder dislocation more likely than not caused his current right shoulder disability prior to his 2003 injury. Prior VA examinations, however, do not offer opinions consistent with an in-service right shoulder dislocation. Additionally, the Veteran's 1957 service treatment records do not mention a dislocated right shoulder. The statement by A.A. does not address service treatment notes which document that the Veteran's in-service shoulder injury was treated only with "liniment and hot packs", with no additional procedure or treatment noted. 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. Contact the Veteran and request that he submit an updated VA Form 21-4142, Authorization and Consent to Release Information to the VA, in favor of a 2003 visit to a private hospital in Bristol, Connecticut, and a 2004 treatment by a private orthopedist in New Britain, Connecticut. Advise the Veteran that he may submit his private treatment records if he so chooses. Attempt to obtain and associate with the claims file any identified private treatment records. If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. 2. Schedule the Veteran for a VA examination with an orthopedic surgeon in order to address the nature and etiology of any diagnosed a right shoulder disability. This examination is to be conducted by an orthopedic surgeon who has not previously examined or treated the claimant. The physician is to be provided access to the claims folder, the VBMS file, the Virtual VA file and a copy of this remand. Following the examination, and after considering all procurable and assembled data through tests and records that might reasonably illuminate the medical analysis, the physician must address whether it is as least as likely as not (50 percent or greater probability) that any diagnosed a right shoulder disability is related to the Veteran's military service. In addition to addressing the Veteran's full medical history as it relates to his right shoulder disability, the orthopedic surgeon must specifically address: a. The four-part proximal humerus fracture that the Veteran sustained following a fall from a chair while changing a light bulb in 2003. b. The significant an interplay, if any, concerning the Veteran's fall in the slow during his service on February 1, 1957. c. The results of the December 2000 x-ray. d. Whether treatment of liniments and hot packs may evince 1957 standards of treatment for a dislocated shoulder. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. The Veteran is to be notified that it is his responsibility to report for the examination and to fully cooperate to the best of his ability in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned undeliverable. 4. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this remand. The RO must ensure that the examiner documented their consideration of VBMS and Virtual VA records. If any report is deficient in any manner, corrective procedures must be implemented at once. 5. Then readjudicate the Veteran's appeal based on the entirety of the evidence. If the benefit sought on appeal is not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant 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 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). _________________________________________________ JOHN Z. JONES 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).