Citation Nr: 0716242 Decision Date: 06/01/07 Archive Date: 06/18/07 DOCKET NO. 05-29 033 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a right upper arm/shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Associate Counsel INTRODUCTION The veteran had active service from November 1961 to November 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision in which the RO denied service connection for a right upper arm condition. The veteran filed a notice of disagreement (NOD) in February 2004, and the RO issued a statement of the case (SOC) in August 2005. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in August 2005. In August 2006, the veteran testified during a hearing before the undersigned Veterans Law Judge at the San Antonio satellite office of the RO; a transcript of that hearing is of record. At that time, the veteran submitted a written statement indicating that, although his March 2003 claim form characterized the claimed disability as an upper arm condition, he had intended to claim service connection for a right shoulder disability. For the reasons expressed below, the matter on appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran when further action, on his part, is required. REMAND During the Board hearing, the veteran stated that Dr. Salinas of the Well Med Center at Greenway Park, in San Antonio, Texas had recently diagnosed him with a right shoulder disability, possibly bursitis (Hearing transcript, p. 6). Although the RO has obtained records from the Well Med Center dated from January to March 2003, these records do not contain treatment records from Dr. Salinas, nor do they contain a diagnosis of a right shoulder disability. The veteran's representative requested that these records be obtained (Hearing transcript, p. 8). As the veteran has indicated that Dr. Salinas' treatment records may contain evidence of a current right shoulder disability and the veteran's representative has requested that VA seek these records, the RO, after obtaining authorization from the veteran, again request records from the Well Med Center, specifying that it is seeking the records of Dr. Salinas relating to the veteran's right upper arm or shoulder. To ensure that all due process requirements are met, the RO should also give the veteran another opportunity to present and/or evidence pertinent to his claim on appeal. The RO's notice letter to the veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2006) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO's letter should also explain the respective responsibilities of VA and the veteran in obtaining additional evidence, invite the veteran to submit all pertinent evidence in his possession (not previously requested), and ensure that its notice to the veteran meets the requirements of the Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as regards the five elements of a claim for service connection-particularly, disability ratings and effective dates-as appropriate. After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2006). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2006). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the veteran and his representative a letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should specifically request that the veteran provide authorization to enable it to obtain any pertinent outstanding records of Dr. Salinas of the Well Med Center at Greenway Park, in San Antonio, Texas, particularly those relating to the veteran's right upper arm or shoulder. The RO should also explain the respective responsibilities of VA and the veteran in obtaining additional evidence and invite the veteran to submit all pertinent evidence in his possession that is not already of record. The RO should ensure that its letter meets the requirements of Dingess/Hartman (cited to above)-particularly as regards assignment of disability ratings and effective dates, as appropriate. The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. In requesting the veteran's outstanding medical records from the Well Med Center, the RO should specify that it is seeking the records of Dr. Salinas relating to the veteran's right upper arm or shoulder. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify him and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the claim for service connection for a right upper arm/shoulder disability in light of all pertinent evidence and legal authority. 5. If the benefits sought on appeal remain denied, the RO must furnish to the veteran and his representative an appropriate supplemental SOC that includes citation to and discussion of additional evidence and legal authority considered, as well as clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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 2002 & Supp. 2006). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2006), 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 the appeal. 38 C.F.R. § 20.1100(b) (2006).