Citation Nr: 21074820 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 13-18 248 DATE: December 16, 2021 REMANDED The issue of service connection for a left shoulder condition is remanded. REASONS FOR REMAND The Veteran had active service from March 2002 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on a July 2021 joint motion for remand (JMR) from the Court of Appeals for Veterans Claims (Court), which vacated the August 2020 Board decision that denied the issue of service connection for a left shoulder condition. Specifically, the Court found that the VA examinations of record did not adequately address pertinent evidence of record, to include the Veteran's statements regarding his condition. See 38 U.S.C. § 5103A(d); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). In accordance with the July 2021 JMR, the issue of service connection for a left shoulder condition will be remanded for a new VA medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The issue of service connection for a left shoulder condition is remanded. The matter is REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran contends that his left shoulder condition was incurred in-service, to include an in-service bone contusion caused by a February 2004 skateboard fall. Private magnetic resonance imaging (MRI) from July 2005 shows evidence of a prior dislocation, such as marrow edema of the posterolateral humeral head with a small notch. The Veteran was provided VA examinations in March 2006, April 2014, and May 2017. Although the VA opinions of record address the bone contusion that is recorded in the service treatment records, the opinions do not address the Veteran's statements regarding multiple left shoulder dislocations while in-service or the July 2005 private MRI report showing evidence of prior dislocations. For these reasons, the VA examinations of record are not adequate. See 38 U.S.C. § 5103A(d); Dalton, 21 Vet. App. at 39. Therefore, the issue of service connection for a left shoulder condition is remanded for a new VA opinion that considers and addresses the Veteran's statements that he had multiple left shoulder dislocations in-service, and to consider and address whether the July 2005 private MRI report supports an in-service etiology for his current disability. See Barr, 21 Vet. App. at 311. THE REMAND DIRECTIVES FOLLOW. 2. Ensure that all outstanding VA and private treatment records are associated with the claims file. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his left shoulder condition. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner MUST provide the following opinions: (a.) Provide an opinion as to whether the Veteran's currently diagnosed left shoulder condition was incurred in-service, or caused by an in-service injury, event, or illness, to include in-service treatment for a left shoulder condition after a fall while skateboarding, in February 2004. (b.) In providing the requested opinions, the examiner MUST specifically discuss the evidence dated or occurring after the February 2004 service treatment record showing a left shoulder injury. Specifically, the examiner MUST EXPRESS A FULLY INFORMED OPINION AS TO WHETHER THE POST-SERVICE INJURIES BELOW INDICATE THE VETERAN HAD A CONTINUOUS LEFT SHOULDER DISORDER THAT WAS CAUSED BY SERVICE: *the July 2005 work-related left shoulder injury; *the July 2005 private MRI report showing evidence of previous left shoulder dislocation; *the March 2006 VA examination showing that the Veteran reported multiple left shoulder dislocations in-service; *the September 2010 statement, in which the Veteran reported multiple left shoulder dislocations in-service; *the June 2013 statement, in which the Veteran reported that, when he had left shoulder surgery in September and October 2005, doctors told him that his left shoulder had been torn earlier, before the railroad injury; and *the April 2014 VA examination showing a diagnosis of left shoulder arthroscopy, with onset in 2005, and status-post left shoulder strain, with onset in February 2004. (c.) THE EXAMINER MUST ALSO EXPRESS AN OPINION OF WHETHER THE VETERAN'S ACCOUNT OF THE DEVELOPMENT OF THE DISORDER IS CONSISTENT WITH THE MEDICAL EVIDENCE AND THE EXAMINER'S KNOWLEDGE AND PRACTICE EXPERIENCE. (d.) If the examiner determines that the Veteran's left shoulder condition was not incurred in-service, or caused by an in-service injury, event, or illness, to include in-service treatment for a left shoulder injury after a fall while skateboarding, in February 2004, to the extent possible, provide an opinion regarding the likely etiology of the condition. (e.) IN ADDITION to the specific evidence highlighted above, the examiner MUST also discuss all other pertinent evidence of record, to include the Veteran's statements regarding his condition; the examiner MUST provide a complete and full explanation for the opinions provided. (f.) The examiner is ADVISED that an opinion that does not completely and fully discuss all pertinent evidence, and specifically the evidence noted above, AND/OR is without a complete and full explanation, is not adequate. The examiner MUST review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner's attention is drawn to the following: * A February 2004 service treatment record showing that the Veteran reported to the emergency room complaining of left shoulder pain after a fall while skateboarding. Upon examination, the Veteran had full range of motion with some discomfort. * The October 2004 report of medical assessment showing that the Veteran reported that his health had not changed since earlier examinations and that he had no new illnesses or injuries. The examiner noted "no ongoing issues." * July 2005 private treatment records show that the Veteran worked at a railroad, and that he was recently injured when pulling himself onto a railcar when he felt a pop in his shoulder. He reported that, when the pain worsened, he was told by his employer to get medical attention. The examiner stated, "[the] [p]atient reports no previous history or problems with his left shoulder as far as dislocation, fractures, or injury." * A subsequent July 2005 private MRI of the left shoulder shows that the Veteran reported a history of multiple dislocations. The MRI report shows the following: minimal degenerative change of the acromioclavicular (AC) joint, mild tendinosis of the distal supraspinatus tendon without focal full thickness tear, marrow edema of the posterolateral humeral head with a small notch, consistent with a small Hill Sachs lesion and previous dislocation, and mild increased signal within the superior cartilaginous labrum, which might raise suspicion for labral tear. * An August 2005 private medical note shows that the Veteran reported that he injured a shoulder during high-school wrestling and that he reported no other shoulder injuries. * An August 2005 private orthopedic note shows that the Veteran reported that his shoulder injury occurred when he was moving equipment for the railroad in July 2005. * In September 2005, the Veteran underwent a left shoulder arthroscopy with debridement of joint, debridement of partial superior and inferior labral tearing and partial synovectomy. * The Veteran had a second surgery on his shoulder in October 2005 when an open Bankart repair with anterior glenoid based capsular shift was completed. * A February 2006 private treatment record shows that the motion and function of the left shoulder were improving. * The March 2006 VA General Medical Examination shows that the Veteran reported that he injured his left shoulder in-service, and that the shoulder came out of the socket several times in-service. The Veteran reported that after his October 2004 separation from service, he started work for the railroad. He reported that he was released in February 2006 because of a work-related shoulder injury. He reported that he had surgery for the shoulder and did not receive Worker's Compensation. * In September 2010, the Veteran reported that he dislocated his left shoulder in-service. He reported that x-rays were performed after his February 2004 injury, but he was not provided with MRI, and that the x-rays do not show the full extent of his in-service injuries. He reported that, after one of his post-service surgeries, a doctor told him that there had been an earlier dislocation of the shoulder. The Veteran reported that he then had and still suffered from stiffness in his shoulder. * In June 2013, the Veteran reported that he had surgery in September and October 2005 and that doctors told him that his shoulder had been torn earlier, before the railroad injury. * The April 2014 VA examination shows a diagnosis of left shoulder arthroscopy, with onset in 2005, and status-post left shoulder strain, with onset in February 2004. The examiner opined that it was less likely than not caused by his 2004 skateboarding injury because the treatment was minimal, the Veteran did not mention having any ongoing shoulder trouble at separation, and it is more likely that his 2005 railroad injury caused the present disability because the symptoms of that injury were more severe and persistent. However, the examination is inadequate because it does not address the July 2005 private MRI report showing evidence of prior left shoulder dislocation. * In May 2015, in response to a Board remand directive to obtain Worker's Compensation records, the railroad stated that there is no Worker's Compensation for railroad employees and provided receipts of its payment for the Veteran's treatment. * March 2017 VA treatment records note pain in the left shoulder and show that the Veteran was treated with a steroid injection in the left shoulder in December 2016. * The May 2017 VA examination shows a labral tear of the left shoulder, diagnosed in 2005, and degenerative arthritis of the left shoulder, diagnosed in 2017. The Veteran reported that he fell on his left shoulder while skateboarding in-service, in February 2004, was diagnosed with a bone contusion, and did not mention it on his service separation examination. He reported that he began working for a railroad in July 2005 and then dislocated his shoulder, leading to surgery in September 2005. The examiner opined that the condition was less likely than not incurred in-service. The examiner explained that the contusion the Veteran sustained in-service was not significant enough to cause a labral tear or degenerative joint disease of the shoulder, and the injury he incurred at the railroad, which required surgery, is more likely to have caused a long-term chronic condition, causing the degenerative changes. However, as in the April 2014 VA examination, the examination is inadequate because it does not address the July 2005 private MRI report showing evidence of prior left shoulder dislocation. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner is advised that by law, the mere statement that the claims folder was reviewed, and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. 4. Following the review and any additional development deemed necessary, re-adjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC), and forward the claim to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON THE NEXT PAGE) 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. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.