Citation Nr: 0813868 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 03-20 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE 1. Entitlement to service connection for chronic contusion, medial epicondyle, right elbow. 2. Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from December 1973 to October 1974. This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2002 rating decision of the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO), which denied, in pertinent part, service connection for chronic contusion, medial epicondyle, right elbow, and a cervical spine disorder. The veteran testified before the undersigned Veterans Law Judge (VLJ) in December 2004. A transcript of that hearing is of record and associated with the claims folder. The Board remanded the instant claims in May 2005, for compliance with the then-recently enacted Veterans Claims Assistance Act (VCAA). See Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). After careful consideration of the evidence of record in light of precedential opinions by the appellate courts relating to VA's duty to assist claimants, the Board finds that his matter must again be remanded for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on her part. REMAND The veteran asserts that chronic contusion, medial epicondyle, right elbow and a cervical spine disorder are a result of a roller skating accident in service. She also maintains that chronic contusion, medial epicondyle, right elbow and a cervical spine disorder are secondary to her service-connected rotator cuff tear of the right shoulder. The Board has determined that a VA medical examination must be afforded the veteran, pursuant to VA's duty to assist. McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see Charles v. Principi, 16 Vet. App. 370 (2002) (Observing that under 38 U.S.C.A. § 5103A(d)(2), VA was to provide a medical examination as "necessary to make a decision on a claim, where the evidence of record, taking into consideration all information and lay or medical evidence [including statements of the claimant]; contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but does not contain sufficient medical evidence for the [VA] to make a decision on the claim."). Although the VA medical examiner and the RO/AMC are obligated to ensure review of the claims folder, and the Board presently expresses no opinion as to the merits of the claims, the veteran's service medical records show that in January 1974, she fell on her right arm roller skating and complained of pain in her right shoulder. Although the veteran has periodically asserted that she was shown a "hairline fracture" of an unknown point on her arm, the x- rays taken at that time were negative. Service department radiographic examination indicated that the right humeral head was a little more medial than usually seen, there was no evidence of dislocation, and there was no erosion about the humeral head seen. There were no other findings in the service medical records related to her elbow or neck except in July 1974, she complained of a sore neck and chest pain. Diagnostic impression at that time was upper respiratory infection. During an October 1974 separation physical examination, the veteran reported that she was in "fine health," except for back pain. Notwithstanding the lack of findings related to the right elbow and the neck in service, the veteran states that she has had pain in these areas since service that has worsened over the years. Moreover, she indicates that she has not sustained any other trauma since service to cause the neck and elbow complaints. Recent x-rays show that she has a partial tear of the rotator cuff, right shoulder with limitation of motion and pain. The veteran is in receipt of service connection for this disability. In March 2002 and April 2003 medical reports, the veteran was diagnosed as having a chronic contusion of the medical epicondyle. The latter examination specifically linked the disorder to the reported in-service incident, but also noted the veteran's report that "she was told" that she had sustained a hairline fracture of the elbow when she injured her shoulder. It is unknown whether the examiner reviewed the service medical records, or whether the examiner relied both on the veteran's account and the service medical records. The source of the information provided to the medical care provider is critical as it bears upon the accuracy of the source of the veteran's claimed disorder. Swan v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (holding that it is error to reject a medical opinion solely on the basis that the medical opinion was based on a history given by the veteran, and that a claimant's report must be examined in light of the evidence of record). In VA medical records of November 2004, the examiner relates that he could not tell if the veteran's cervical spine disorder was related to her service-connected right shoulder until surgery has been performed. There is medical evidence that the veteran sustained an injury in service. Further, she associates her elbow and neck complaints with the injury. However, the evidence of record is not sufficient to determine if these disorders are due to injury sustained in service. Most importantly the bases of any opinions provided by VA medical care providers as to the source of the veteran's cervical spine disorder and right elbow disorder are not clear. A medical examination and opinion regarding any link between the veteran's service and her right elbow and cervical spine disorders, to include as secondary to her service-connected right shoulder disability, needs to be addressed prior to final resolution of the claims. In a June 2006 Supplemental Statement of the Case (SSOC), the RO related the regulations pertaining to secondary service connection. It was indicated that this was the new regulation pertaining to secondary service connection. The regulations provided were not new, and 38 C.F.R. § 3.310 (a)(b) (2007) should be used to evaluate the claims as they relate to secondary service connection. These regulations should be provided to the veteran. Accordingly, the case is REMANDED for the following action: 1. All VA inpatient and outpatient medical records since November 2004 to the present, related to the veteran's right shoulder and/or cervical spine should be obtained and associated with the claims folder. 2. The veteran should be afforded appropriate VA medical examinations for her right elbow and cervical spine disorders. All indicated studies should be performed. An opinion should be provided by the examiner(s) indicating whether the veteran's right elbow and/or cervical spine disorders are a result of an event in service or in the alternative, if these disabilities are due to or are aggravated by her service- connected right shoulder disability. The examiner must review the service medical records and the summary of evidence as is provided above, and acknowledge such receipt and review in any report generated as a result of this remand. In particular, the examiner must comment upon the medical likelihood that, apart from the veteran's account and with due examination of service department radiological findings, the veteran sustained a "hairline fracture" at the time she fell during active military service in January 1974, and if so whether the currently-claimed elbow disorder is the result of that fall. A rationale should be provided for any opinion rendered. If the examiner is unable to make a determination of the etiology of the elbow and cervical spine disorders without resorting to speculation, the examiner should so state. 3. After undertaking any other development deemed essential in addition to that specified above, the RO/AMC should re-adjudicate the veteran's claims for service connection for chronic contusion, medial epicondyle, right elbow and a cervical spine disorder on a direct basis, and also as secondary to the veteran's service-connected right shoulder disability, pursuant to 38 C.F.R. § 3.310(a)(b). If any benefit sought on appeal remains denied, the veteran should be provided a SSOC. The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and discussion of all pertinent regulations. An appropriate period of time should be allowed for response. 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. 2005). _________________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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 your appeal. 38 C.F.R. § 20.1100(b) (2007).