Citation Nr: 0002734 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 98-09 974A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a left shoulder condition as secondary to service-connected right and left knee disabilities. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Douglas E. Massey, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the veteran's claim of entitlement to service connection for a left shoulder condition as secondary to a service-connected right knee disability. The veteran, who served on active duty from June 1957 to June 1961, appealed that decision to the Board. The Board has recharacterized the issue on appeal as service connection for a left shoulder condition as secondary to service-connected right and left knee disabilities. In recharacterizing the issue, the Board observes that service connection is currently in effect for both right and left knee disabilities. Further, the veteran's January 1997 claim did not identify the right knee disability as the cause of his left shoulder condition; rather, it stated that the veteran injured his left shoulder on numerous occasions due to falls caused by his service-connected knee. Thus, the Board finds that both right and left knee disabilities should be considered with respect to adjudication of this claim. FINDING OF FACT Competent medical evidence has related the veteran's left shoulder condition to his service-connected right and left knee disabilities. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for a left shoulder condition as secondary to service-connected right and left knee disabilities is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection is currently in effect for right and left knee disabilities, each of which is rated as 30 percent disabling for severe instability of the knee joint. The veteran now claims that he currently suffers from a left shoulder condition as a result of these service-connected disabilities. He asserts that instability of his knees has caused him to fall on numerous occasions, thereby either causing or aggravating his left shoulder condition. Therefore, service connection for a left shoulder condition has been requested. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). In addition, a disability which is proximately due to or the result of another disease or injury for which service connection has been granted shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a) (1999). When aggravation of a disease or injury for which service connection has not been granted is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability, and no more, over and above the degree of disability existing prior to the aggravation. Id; see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The preliminary question to be answered, however, is whether the veteran has presented evidence that his claim is well grounded. A well-grounded claim is not necessarily a claim that will ultimately be deemed allowable; rather, it is a plausible claim, properly supported with evidence. See 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464, 1468 (1997); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the absence of evidence of a well-grounded claim, there is no duty to assist the veteran in developing the facts pertinent to the claim, and the claim must fail. See Slater v. Brown, 9 Vet. App. 240, 243 (1996); Gregory v. Brown, 8 Vet. App. 563, 568 (1996) (en banc); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Three types of evidence must generally be presented in order for a claim for service connection to be well grounded: (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps, 126 F.3d at 1468. In order for a claim for secondary service connection for a disorder clearly separate from the service-connected disorder to be well grounded, the veteran must present medical evidence to support the alleged causal relationship between the service-connected disorder and the disorder for which secondary service connection is sought. See Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). The Board finds that the veteran has presented a well- grounded claim of entitlement to service connection for a left shoulder condition, as competent medical evidence suggests that this condition is related to his service- connected right and left disabilities. The veteran has submitted numerous VA outpatient treatment reports which appear to support his theory of secondary service connection. A February 1991 entry noted the veteran's history of having undergone a left shoulder acromioplasty with repair of partial rotator cuff tear. It was also noted that the veteran experienced instability of both knees which had resulted in several falls, and that he was using crutches and a wheelchair. An August 1993 entry included the veteran's statement that he had fallen down several times since 1988 due to his right knee giving way. A December 1993 triage report reveals that the veteran was admitted after falling on his left shoulder while trying to get off his couch. The veteran indicated that the fall occurred after his left knee gave out, which had been a frequent occurrence since his knee surgery in August 1993. A September 1996 treatment report included the veteran's complaint of pain in his left shoulder after a fall in July 1995. The veteran explained that the pain radiated from his left shoulder to his neck and arm. X-rays revealed degenerative joint disease of the left shoulder. The clinician's assessment was left shoulder pain, status post left acromioplasty 1992. A November 1996 VA surgical report noted that the veteran underwent a left shoulder hemiarthroplasty with an uncemented component. The diagnoses at discharge were left shoulder degenerative joint disease and left shoulder loose body. The record shows that the veteran continued to suffer from pain in his left shoulder following surgery. More importantly, several of these reports suggest that the veteran's left shoulder condition may have been either caused or aggravated by his service-connected right and left knee disabilities. Two entries in August 1997 support this theory. An entry dated August 12, 1997, noted " L shoulder Deg. Changes - exacerbated by falls due to knee condition." When seen on August 18, 1997, the clinician stated that the veteran "has arthritis and apparently fell a number of times including injuring his left shoulder during these falls which more than likely began the course of his symptoms." Finally, a December 1997 entry noted the veteran's history of bilateral knee replacements with frequent falls onto the left shoulder. The Board has determined that there is competent evidence of a current disability and medical evidence relating the veteran's left shoulder disability to service-connected disability. The Board finds that this evidence is sufficient to render the claim plausible and capable of substantiation. Therefore, the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498, 505- 06 (1995), aff'd, 78 F.3d 604 (Fed Cir. 1996) (per curiam). The Board notes further, that such an finding does not go to the merits of the claim, but rather to the threshold burden which the veteran must satisfy pursuant to 38 U.S.C.A. § 5107. As the claim is well grounded, the VA has a duty to assist under 38 U.S.C.A. § 5107(a), and then may evaluate the merits of the claim. For the reasons set forth in the Remand, below, the Board finds that further development must be accomplished by the RO before the Board may consider the merits of the veteran's claim for secondary service connection for a left shoulder disability. ORDER The veteran's claim for service connection for a left shoulder disability as secondary to service-connected bilateral knee disability is well grounded, and his claim with respect to this issue is granted to this extent only. REMAND Given that the veteran has presented evidence of a well- grounded claim for service connection, the Board observes that the VA has a further obligation to assist him in the development of evidence to support his claim. See 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps, 126 F.3d 1464. Based on the current record, the Board concludes that further development is warranted with respect to the veteran's claim. The evidence which appears to be supportive of the veteran's claim is outlined above. It is unclear, however, as to whether such opinions were based on a review of the entire relevant record. The Board notes further, that there is also evidence of record, reportedly based on a review of the record, which clearly finds no relationship between the veteran's left shoulder disability and his bilateral knee disability. In this regard, the Board notes that the veteran was afforded a VA examination in March 1998 to determine whether his left shoulder condition was in any way caused or aggravated by his service-connected right knee disability. A report from that examination included diagnoses of (1) status post hemiarthroplasty, left shoulder with inability to move the shoulder and disuse atrophy; and (2) status post total knee arthroplasty, right and left, stable. The examiner concluded that, based on a review of the record, there was no relationship between the veteran's service-connected right knee disability and the left shoulder arthroplasty. The examiner also stated that there was no evidence that the right knee disability aggravated or caused the initial left shoulder condition. The examiner expressed that it was unclear why a hemiarthroplasty of the left shoulder was performed. He made no comment as to the existence or relevance of treatment received by the veteran for his left shoulder, including surgery, prior to the 1996 hemiarthroplasty. The Board finds, however, that an additional VA examination is necessary to reconcile the conflicting medical opinions concerning the etiology of the veteran's left shoulder condition. VA outpatient treatment reports indicate that the veteran's left shoulder condition may have been caused or aggravated by his service-connected right and left knee disabilities, while the March 1998 VA examination report ruled out any such relationship with respect to the right knee disability without any explanation. Moreover, the VA examiner never addressed the medical opinions which support the veteran's claim and he made no comment as to the relevance of the other treatment for the left shoulder received by the veteran prior to the 1996 surgery. In this regard, the Board notes that the veteran testified at a hearing in June 1999 that he first received treatment at a VA medical facility in Ann Arbor for his left shoulder following a fall in 1986 and that he continued to receive treatment for symptomatology related to his left shoulder, including 1992 surgery, through the present time. In addition, since the RO characterized the issue as service connection for a left shoulder condition as secondary to a service-connected right knee disability, the examiner never considered the possibility that the veteran's left shoulder condition was either caused or aggravated by his service-connected left knee disability or a combination of service-connected bilateral knee disabilities. The Board may not refute expert medical conclusions in the record with its own unsubstantiated medical conclusions; if the medical evidence of record is insufficient, or of doubtful weight or credibility, the Board may supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises in its decisions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board finds that further development is warranted in this regard. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should request that the veteran identify all sources of medical treatment received for his left shoulder since 1986, and that he furnish signed authorizations for release to the VA of private medical records in connection with each non-VA medical source he identifies. Copies of the medical records from all sources he identifies, and not currently of record, should then be requested and associated with the claims folder. The RO should also make a specific request for medical records of the veteran for treatment of his left shoulder since 1986 at the Ann Arbor VA medical facility, not already of record. 2. The veteran should be afforded a VA examination to determine whether his left shoulder condition was either caused or aggravated by either or both of his service-connected knee disabilities. The claims folder should be provided to the examiner for his or her review in connection with the examination. All necessary tests and evaluations should be performed, and the examiner should not render a final opinion until after receipt of all test results. Following review of the veteran's claims file, completion of the examination, and receipt of all test results, the examiner should specifically address whether it is as least as likely as not that the veteran's left shoulder condition: (1) is causally or etiologically related to either or both of the veteran's service- connected knee disabilities; or (2) has been aggravated by either or both service-connected knee disabilities. If aggravation is found, the examiner is requested to attempt to quantify the degree of additional impairment resulting from the aggravation, in terms of any diminution in range of motion of the affected joint, if possible. All pertinent clinical findings and the complete rationale for all opinions expressed should be set forth in a typewritten report. The examiner should attempt to reconcile the conflicting opinions contained in the VA outpatient treatment reports discussed above and the opinion contained in the March 1998 VA examination report. 3. The RO should review the examination report to determine if it is in compliance with this REMAND. If deficient in any manner, it should be returned, along with the claims file, for immediate corrective action. 4. After undertaking any additional development deemed appropriate, and giving the veteran full opportunity to supplement the record, the RO should then adjudicate the veteran's claim of entitlement to service connection for a left shoulder condition as secondary to service-connected right and left knee disabilities. If the benefit sought on appeal is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional evidence. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). S. L. KENNEDY Member, Board of Veterans' Appeals