Citation Nr: 0814256 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 07-25 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right leg disorder. 2. Entitlement to service connection for residuals of a right Achilles tendon injury. 3. Entitlement to service connection for a right shoulder disorder. 4. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active military service from November 1952 to November 1957. This appeal to the Board of Veterans' Appeals (Board) is from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board recently advanced this case on the docket in April 2008 because of the veteran's age. 38 U.S.C.A. § 7107; 38 C.F.R. § 20.900(c). Regrettably, though, the Board must remand this case to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. REMAND The majority of the veteran's service medical records (SMRs) are unavailable. The only SMRs the RO was able to obtain were those the veteran provided. The RO made several attempts to obtain additional SMRs and Morning Reports from the National Personnel Records Center (NPRC), a military records repository. But the NPRC responded that the records were unavailable and presumed destroyed in a 1973 fire at that facility. When, as here, at least a portion of the SMRs are lost or missing, VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule, to assist the veteran in developing the claim, and to explain the reasons and bases for its decision ...." See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Although in this situation - when records are missing, there is a heightened obligation to more fully explain the reasons and bases for a decision, this does not obviate the need to have medical nexus evidence supporting the claim. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). That is to say, there is no reverse presumption for granting the claim. See Russo v. Brown, 9 Vet. App. 46 (1996). Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). The veteran submitted his own correspondence with the NPRC to VA. In an August 2006 letter, he showed that he had been trying to obtain records from the NPRC since 1977. Additionally, he submitted a letter the NPRC sent to his Congressional representative as a response to an inquiry the veteran made in May 1990. The NPRC informed the veteran's Congressperson that, normally, alternative records were sought via a NA Form 10355, however the documents the veteran submitted contained more information than the NPRC was able to reconstruct. The veteran asserts that he fell and injured his back and shoulder during service, sometime between 1952 and 1953. But as his SMRs are unavailable, there is no evidence confirming he sustained this alleged injury. However, in January 2008, he submitted a letter from R. K., his private physician, and waived his right to have the RO initially consider this statement. 38 C.F.R. §§ 20.800, 20.1304(c) (2007). Dr. R. K.'s letter indicates the veteran has a post-traumatic rotator cuff tear of the right shoulder with acromioclavicular (AC) joint arthrosis, impingement syndrome, and a partial tear of the supraspinatous tendon. The letter also indicates the veteran has right lumbar radiculitis with L5 radiculopathy on EMG, abnormal MRI scan, and lumbar spondylosis and spinal stenosis. Dr. R. K. concluded that, in the absence of any history of injury to the veteran's low back and right shoulder after the accident in the war, in his opinion, these findings are felt to be directly related to the war injury. As further support for his claims, the veteran also submitted a statement from his private chiropractor, R.D., indicating the veteran is physically disabled due to his chronic neck, right shoulder, low back, right leg, and Achilles help problems, also reiterating the veteran believes these injuries were incurred in the Korean Conflict approximately 54 years earlier. As well, in November 2005, the veteran submitted a photograph of the men in his unit boarding a ship in Korea. He stated that he believed he was the man located sixth from the right, with his duffel bag hanging down from his left shoulder, as his right shoulder and leg were injured. According to the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (i.e., service connection) claims, VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Here, there is competent medical evidence confirming the veteran has diagnoses of the claimed disabilities. And while his SMRs are not of record to confirm he sustained the alleged injury in service, the January 2008 opinion from Dr. R. K. indicates these current disabilities are most likely the result of that injury in service, assuming it occurred, because there is no indication of any other injury since service. The Board, however, believes a VA medical examination and opinion are needed to assist in determining whether this is indeed the case. See, e.g., Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Accordingly, the claims are REMANDED for the following development and consideration: 1. Schedule the veteran for an appropriate VA examination to obtain a medical opinion indicating whether it is at least as likely as not (meaning 50 percent or more probable) that his right shoulder condition, low back condition, and the associated right leg condition and right Achilles tendon condition (including the radiculopathy in this extremity) are post-traumatic and were caused by an injury in 1953 or thereabouts during his service in the Korean Conflict. Have the designated examiner review the claims file for the pertinent medical and other history, including a complete copy of this remand, the January 2008 statement from the veteran's private physician (R.K., M.D.) and the additional statement from his chiropractor (R.D.). Inform the designated examiner that the term "at least as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this. Advise the veteran that failure to report for his scheduled VA examination, without good cause, may have adverse consequences on his claims. 2. Then readjudicate the claims in light of any additional evidence d. If the disposition remains unfavorable, send the veteran and his representative a supplemental statement of the case and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2007). _________________________________________________ KEITH W. ALLEN 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).