Citation Nr: 1442262	
Decision Date: 09/22/14    Archive Date: 09/30/14

DOCKET NO.  13-20 789	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUES

1.  Entitlement to service connection for a right shoulder condition.

2.  Entitlement to service connection for a left shoulder condition.

3.  Entitlement to service connection for a right knee condition. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

A. Solomon, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1951 to May 1952.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a  February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.  

A hearing was held on June 19, 2014, in Albuquerque, New Mexico, before Kathleen K. Gallagher, a Veterans Law Judge (VLJ), who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case.  A transcript of the hearing testimony is in the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to service connection for a right shoulder and right knee condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

At the June 2014 Board hearing, prior to the promulgation of a Board decision in the appeal, the Veteran expressed his desire to withdraw his appeal of the issue of entitlement to service connection for a left shoulder condition.


CONCLUSION OF LAW

The criteria for withdrawal of a Substantive Appeal by the Veteran have been met with respect to the issue of entitlement to service connection for a left shoulder condition.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn on the record at a hearing, or otherwise in writing, at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2014).  Withdrawal may be made by the appellant or by his authorized representative.  38 C.F.R. § 20.204.  At the June 2014 Board hearing, on the record, the Veteran stated that he wished to withdraw his appeal as to the claim for service connection for a left shoulder condition.  As a result, no allegation of error of fact or law remains before the Board for consideration with regard to that particular issue on appeal. Accordingly, the Board does not have jurisdiction over that claim, and the appeal of the claim for service connection for a left shoulder condition must be dismissed.


ORDER

The appeal of the claim of entitlement to service connection for a left shoulder condition is dismissed.



REMAND

Reasons for remand:  To obtain outstanding service treatment and service personnel records, private medical records, and recent VA treatment records, and to provide the Veteran with a VA examination.

The Veteran contends that he suffers from right shoulder and right knee disabilities that are a result of his active military service.  Specifically, he asserts that he sustained injury to his right knee and shoulder when he was using a high-powered steam hose during service in March 1951 at Kirtland Air Force Base, and slipped on some ice, lost his balance, and fell off a dock.  

In developing an earlier claim for service connection for a stomach disability, VA requested the Veteran's service medical records from the War Department in July 1952.  The request noted that the Veteran alleged stomach trouble in November 1951, and requested hospital or infirmary records from November 1951 to May 1952, and medical records including examination at entrance and discharge.  A review of the service treatment records contained in the claims file reveals the presence of an entrance examination, a July 1951 ambulatory note from George Air Force Base, July and October 1951 dental records, and handwritten records of treatment between November 1951 and April 1952.  As noted above, the Veteran asserts that he received treatment in March 1951, records of which do not appear in the claims file.  In fact, the treatment records from the Veteran's time at Kirtland Air Force Base appear to be absent from the claims file.  As it seems that the claims file contains incomplete service treatment records for the Veteran, and early service treatment records are particularly pertinent to the claim at issue, on remand, further efforts should be made to ensure all available records, particularly those from February 1951 to November 1951, are obtained.  

Additionally, in a January 2010 statement, the Veteran indicated that within a day of his March 1951 fall, he was taken to the hospital at the air force base and hospitalized for 10 days.  A fellow service member submitted lay statements on behalf of the Veteran in October 2011 and May 2013, wherein he stated that he recalled the Veteran being hospitalized at Kirtland Air Force Base in approximately April 1951 and the Veteran wearing a knee support and arm sling on discharge from the hospital.  Clinical in-patient records may be stored separately from the Veteran's service treatment records.  As a result, these records should also be requested on remand. See 38 U.S.C.A. § 5103A(c) ; 38 C.F.R. § 3.159(c)(2), (3) (2014).

At the June 2014 Board hearing, the Veteran testified that following his hospitalization at Kirtland Air Force Base, a notation was made on his record that until his knee and shoulder recovered, he was to be assigned to desk duty because he was unable to stand and could not raise his right arm.  On remand, the AOJ should contact the National Personnel Records Center, the Records Management Center, and any other appropriate records repository and attempt to acquire the Veteran's complete service personnel records.  All efforts made to locate these records must be documented.

At the June 2014 Board hearing, the Veteran testified that he has been seen by numerous chiropractors in Long Beach during the past 10 years, including a Dr. S. VA has a duty to make reasonable efforts to obtain relevant private treatment records on behalf of the Veteran.  Since a complete set of treatment records is relevant to the claims, these private records should be obtained, pending any necessary release from the Veteran.  38 C.F.R. § 3.159(c)(1) (2014).  Additionally, records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  On remand, up-to-date VA treatment records should be obtained.  

Finally, the Veteran has not yet been provided with a VA examination with regard to his claims for entitlement to service connection for a right shoulder and right knee condition.  In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims held that an examination is required when there is (1) competent evidence of a current disability or recurrent symptoms, (2) evidence establishing an "in-service event, injury or disease," (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.

The claims file contains VA treatment records from the New Mexico Health Care System (HCS) from June 2012, assessing right shoulder rotator cuff tear and degenerative joint disease, and from October 2011, assessing right knee degenerative joint disease.  The Veteran has reported an in-service fall injury, and a statement has been associated with the claims file from a friend who served with the Veteran that the Veteran was hospitalized after the described injury and was released from the hospital with an arm sling and knee support.  Finally, the Veteran testified at the Board hearing that he has had problems with his right knee and right shoulder since service.    

The threshold for finding a link between current disability and service so as to require medical examination is low.  Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83.  In light of the aforementioned evidence, the Veteran should be afforded a VA examination in order to determine the nature and etiology of his right shoulder and right knee conditions.  38 C.F.R. § 3.159(c)(4).

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.  Request the Veteran's complete service personnel records and service treatment records from the National Personnel Records Center (NPRC), the Records Management Center (RMC) and any other appropriate sources.  Records of treatment while at the Kirtland Air Force Base of are particular relevance.  If records have been archived or retired, they should be recalled.  All requests and responses, positive and negative, must be documented in the claims file.  

As required under 38 C.F.R. § 3.159(c)(2), the AOJ must make as many requests as are necessary to obtain the requested records, and may end such efforts only if it concludes that the records sought do not exist or that further efforts to obtain such records would be futile.  If the AOJ reaches such a conclusion or the search for such records has negative results, documentation to that effect should be included in the claims file.  The Veteran must be notified of any negative response.  38 C.F.R. § 3.159(e) (2014).

2.  Request from any appropriate source, including the NPRC and the 377th Medical Group, any inpatient/hospitalization records of the Veteran's reported treatment at the hospital at Kirtland Air Force Base, for the period of March 1, 1951 to April 30, 1951.  All efforts to locate the records must be documented in the claims file.  Efforts to obtain the records should be continued until it is determined that further requests would be futile or it is reasonably certain that the records do not exist.  If records have been archived, retired, or transferred to another location, the facility should so indicate and the records should be recalled.  The Veteran must be notified of any negative response.  38 C.F.R. § 3.159(e) (2014).

3.  Obtain any and all VA treatment records from July 2013 to the present from the Albuquerque VA Medical Center and New Mexico HCS, and associate them with the file.  All efforts to obtain such records must be fully documented and VA facilities must provide a negative response if no records are found.

4.  Ask the Veteran to identify and provide release forms for records of private treatment relating to his right shoulder and right knee claims, not yet associated with the claims file, to include chiropractic treatment from Dr. S. and others, and to identify the dates of any relevant treatment.  After securing the Veteran's written authorization, obtain the private records identified.  If any records cannot be obtained after reasonable efforts have been made, notify the Veteran of the attempts made and allow him the opportunity to obtain the records.  (Note: The Board is using initials to protect the identity of the Veteran.  In all correspondence to the Veteran, the full name of the private physician should be used in order to aid him in responding to the request.)

5.  After completing the aforementioned development, schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of any current right shoulder and right knee disabilities.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination.  The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination.  

The examiner should then provide an opinion as to the following:

a.  Whether it is at least as likely as not (50 percent or greater probability) that any right shoulder disability, present at any time from October 2009 to present, arose during active service or is otherwise related to any incident of service.

b.  Whether it is at least as likely as not (50 percent or greater probability) that any right knee disability, present at any time from January 2010 to present, arose during active service or is otherwise related to any incident of service.

The examiner must consider the Veteran's and other lay statements of record in making his or her conclusions.

(The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)

The examiner should include in the examination report the rationale for any opinion expressed.  However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion.

6.  Thereafter, review the requested medical opinion to ensure that it is responsive to, and in compliance with, the directives of this remand and if not, implement corrective procedures.  

7.  After completing the above, and conducting any additional development deemed necessary, readjudicate the claims for entitlement to service connection for a right shoulder and a right knee condition, in light of all additional evidence received.  If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

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.A. §§ 5109B, 7112 (West Supp. 2014).




______________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs