Citation Nr: 1813701 Decision Date: 03/08/18 Archive Date: 03/14/18 DOCKET NO. 14-20 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1985 to January 1986 and from October 2001 to October 2002. Further, he has additional service with the Montana Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. The Board notes that the Veteran previously filed a claim for entitlement to service connection for a left shoulder disability that was denied in a July 2011 rating decision. The Veteran was notified of that denial later that month and, as the Veteran neither appealed nor submitted additional evidence within one year of the decision, it became final. Pursuant to 38 C.F.R. § 3.156, a claimant may reopen a finally-adjudicated claim by submitting new and material evidence. The Board finds that such evidence has been received and it will reopen the pending claim for service connection for a left shoulder disability. As such, the case is in a posture such that the Veteran's claim may be addressed on its merits. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, further development is required prior to adjudication of the Veteran's claim, as VA has not satisfied its duty to assist the Veteran. In February 2014, the Veteran was provided a VA examination in relation to his left shoulder claim. During this examination, the Veteran reported injuring his left shoulder in service in 1997 while emptying sand bags. The Veteran stated that since the 1997 injury, he occasionally had pain and numbness in his left arm, which he had self-treated with ibuprofen. The examiner then provided 3 left shoulder diagnoses: (1) left deltoid strain, beginning August 1997; (2) tendinosis, beginning August 2013; and (3) impingement, beginning August 2013. The examiner then opined that it was less likely than not that the Veteran's current left shoulder complaints were related to the incident in service. In support of this opinion, the examiner stated that one week after the injury, the Veteran reported full, painless range of motion and went back to work unrestricted. The examiner then cited several self-assessment medical histories from after the 1997 event wherein the Veteran did not report any shoulder joint complaints. Further, the examiner stated that the record was absent records of medical treatment related to the left shoulder until the Veteran presented for a previous VA examination in May 2011, where he was found to be normal. Lastly, the examiner acknowledged that she had reviewed the Veteran's entire claims file, including private treatment records associated at the time of examination, and stated that she disagreed with a September 2013 opinion linking the Veteran's left shoulder complaints to service provided by non-VA physician Dr. Michelotti because there was no objective evidence of ongoing shoulder pain persisting since the 1997 in-service injury. Thereafter, in his June 2014 substantive appeal, the Veteran provided additional information regarding his lack of treatment both in and after service. Specifically, the Veteran first stated that he never experienced pain or loss of mobility in his shoulder before service. The Veteran then stated that, at the time of the injury in 1997, neither x-rays nor another form of internal examination were conducted when he reported for treatment. The Veteran then reported that he has experienced pain and loss of mobility in his shoulder ever since the 1997 injury, but did not receive treatment from medical providers because he attempted to treat himself with ibuprofen or other over-the-counter medications. He stated that this decision was molded by Dr. Sargent-a physician who treated the Veteran immediately following the August 1997 injury-who told the Veteran that it was his professional opinion that nothing more could be done to help the shoulder. Further, at the time of the injury, the Veteran stated that he was a young man who simply wanted to get back to work. Regarding the self-assessments cited by the February 2014 VA examiner, the Veteran stated that, while it was true that he did not report anything in the self-assessments, his lack of reporting was influenced by a common opinion amongst National Guard members that these self-assessments were meaningless, regardless of one's responses. Additionally, the Veteran stated that his in-service physicals were not thorough and compared them to the process of sending large herds of cattle to market. A medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In the instant case, the Board finds the February 2014 VA examiner's opinion inadequate for adjudicative purposes. Firstly, the Board finds the Veteran's June 2014 statement regarding his continuity of symptoms, self-assessments, and lack of medical treatment to be credible. Additionally, in Ledford v. Derwinski, the Court of Appeals for Veterans Claims held that lack of documented treatment is not fatal to a service connection claim. 3 Vet. App. 87, 89 (1992). Accordingly, in light of the inadequacies of the February 2014 VA medical opinion, as well as the new information obtained in the Veteran's June 2014 statement, the Board will remand the matter for a supplemental medical opinion. Relatedly, the Board also finds Dr. Michelotti's September 2013 opinion to be inadequate for adjudicative purposes because it does not contain a rationale explaining the conclusion of the opinion. As such, the Board may not rely upon it in its present form to support a grant of the Veteran's claim. Lastly, given the need to remand the foregoing issues, updated VA treatment records should also be obtained-particularly those records dated since January 2018. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file-particularly those dated since January 2018. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. After the above has been completed to the extent possible, send the claims file to an appropriate VA clinician for the issuance of a supplemental medical opinion as to the nature and etiology of the Veteran's claimed left shoulder disability. The clinician should thoroughly review the Veteran's entire claims file, including a copy of this Remand. If the clinician determines that a new examination is required, one should be scheduled. Thereafter, the clinician should address whether it is at least as likely as not (50 probability or more) that the Veteran's left shoulder disability is related to service, to include an August 1997 injury sustained after lifting sandbags. The clinician should comment specifically upon the Veteran's reports of experiencing left shoulder pain and restricted movement continuously since the August 1997 injury. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim, including Dr. Michelotti's September 2013 opinion. For the opinion requested, a complete rationale must be provided. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if 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). 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). _________________________________________________ S.C. KREMBS 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).