Citation Nr: 20002256 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 16-27 063 DATE: January 10, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a right shoulder condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1970 to September 1973. This appeal comes before the Board of Veterans’ Appeals (Board) from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In September 2019, the Veteran testified at a video conference hearing in the Portland RO before the undersigned Veterans Law Judge sitting at the Central Office in Washington, D.C. A transcript of the hearing is available in the record. 1. Entitlement to compensation under 38 U.S.C. § 1151 for a right shoulder condition is remanded. The Veteran argues that his right shoulder was permanently damaged due to delays by VA in providing him an opportunity for surgery, following a nonservice-connected right shoulder injury. By way of history, in April 2010, the Veteran injured his shoulder and sought treatment at a VA facility. The record shows that the Veteran was first provided physical therapy for treatment, and he attended three physical therapy sessions through June 2010. In July 2010, the Veteran was referred by VA to a private orthopedist. In July 2012, the Veteran was placed on a surgical waitlist at a VA Medical Center. In September 2012, the Veteran’s private treating physician wrote a letter documenting that at that time, the Veteran was considering his options because his prognosis only suggested a 60-70 percent chance of improvement. In October 2013, surgery was scheduled, pending a new MRI. Late in October 2013, the private physician noted that an attempt at repair would be unpredictable, and did not recommend the Veteran as a surgical candidate. The Veteran has argued that the long delay, between his initial injury and his referral for surgery, led to muscle atrophy and permanent shoulder damage. The Veteran has not been afforded a Compensation and Pension examination for his right shoulder, nor has VA provided a medical opinion about whether the long period of treatment caused additional shoulder disability. As there is no medical opinion of record that directly addresses this concern with respect to the 38 U.S.C. § 1151 claim, an examination is necessary prior to appellate review. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Attempt to obtain any updated medical records, from both VA medical centers and private medical treatment providers with regard to the Veteran’s right shoulder condition, and associate them with the claims file. 2. Thereafter, schedule the Veteran for a VA examination in connection with his §1151 claim for his right shoulder disorder. The examiner should review the entire claims file and attempt to determine the nature, extent, and etiology of the Veteran’s right shoulder condition. The examiner should directly answer the following questions: Has the Veteran suffered additional disability as the result of the medical treatment furnished by VA for his shoulder condition? In particular, did any delays in treatment by VA cause the Veteran any additional disability? The examiner should set forth an opinion as to whether any additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment or whether the outcome of the treatment was an event not reasonably foreseeable. A result is not reasonably foreseeable if a reasonable health care provided would not have considered the result as an ordinary risk of the treatment provided. If the Veteran has suffered additional disability, in the examiner’s opinion and knowledge of standard medical practice, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.