Citation Nr: 1001003 Decision Date: 01/07/10 Archive Date: 01/15/10 DOCKET NO. 07-27 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a left shoulder disability, to include as secondary to a service-connected right knee disability. 2. Entitlement to service connection for a low back disability, to include as secondary to a service-connected right knee disability. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD H. E. Costas, Counsel INTRODUCTION The Veteran served on active duty from December 1961 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in, Roanoke, Virginia. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As noted above, the record reflects that the Veteran has current diagnoses of a left shoulder and low back disabilities. The Veteran claims that his current left shoulder and low back disabilities are secondary to his service-connected right knee disability. However, the source of the Veteran's disorders is unclear, and there remains evidence that has not been obtained by VA. The Veteran's service treatment records demonstrate that the Veteran was involved in a car accident in July 1962, which resulted in injuries to his skull and left femur. Upon separation examination in August 1962, physical examination of the upper extremities and spine was within normal limits. A post-service VA examination dated in March 1973, the Veteran related that when he was discharged from service he began working as a machinist. In 1972, the Veteran reported that he started working in the coal mines; however, a week into the job he was involved in an additional car accident, which fractured his L-5 vertebrae. Consequently, he was hospitalized at Kingsport Tennessee Hospital for five weeks and since that time the Veteran reported that he has been disabled and unable to maintain employment. Upon VA examination, in November 2006, the Veteran reported that he had been unemployed since 1972. The Veteran presently contends that in December 2005, his service-connected right knee disorder caused him to fall backwards, and that he then injured his back and left shoulder. However, other records dated in May 2005 authored by the Mountain Home VA Medical Center indicate that the Veteran then reported a "7-year" history of back and neck pain. Further, the Veteran reported to VA medical care providers in April 2003 that he had a prior history of spinal fusion, and that he was then receiving benefits from the Social Security Administration for his back disorder. It is therefore unclear how the Veteran sustained a low back and left shoulder disorder. While the Veteran may present competent lay evidence as to the circumstances of his alleged fall, he is not qualified to present medical evidence. "Competent lay evidence" means "any evidence not requiring that the proponent have specialized education, training, or experience." Lay evidence is competent "if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person." 38 C.F.R. § 3.159(a)(2); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (one not a medical expert is nevertheless competent to offer evidence of his symptoms in support of a claim for an increased disability evaluation); see Layno v. Brown, 6 Vet. App. 465, 470 (1994); Harvey v. Brown, 6 Vet. App. 390, 393 (1994). For the above-stated reasons, the claims will be remanded to obtain clarifying evidence. If necessary, the RO/AMC will schedule the Veteran for a clarifying VA medical examination. The Veteran was afforded a VA examination in November 2006; however, the VA examiner did not address the Veteran's contentions as to the Veteran's alleged incident of falling backwards as a cause of his claimed disorders. Applicable law and regulations state that VA will provide a medical examination or obtain a medical opinion where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC will ascertain if the Veteran has received any VA, non-VA, or other medical treatment for his left shoulder and low back disorders on appeal that is not evidenced by the current record. In particular: a. The RO/AMC should attempt to obtain 1972 records from Kingsport Tennessee Hospital. The Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. The RO/AMC should then obtain these records and associate them with the claims folder. b. The RO/AMC will secure any records administered by the Social Security Administration as to the claimed back and left shoulder disorders. 2. Following a reasonable amount of time or upon the Veteran's response, the RO/AMC should be reexamine the evidence of record, and determine if the Veteran should be provided a comprehensive VA examination, to ascertain if he has a back and/or left shoulder disorder that was caused by, as he alleges, a fall backwards in December 2005 3. Thereafter, the RO/AMC will readjudicate the issues of service connection for a left shoulder disability and a low back disability disorder on a direct basis or due to a service-connected right knee disability. The RO/AMC must ensure that all directed factual and medical development as noted above is completed. If a medical examination is conducted, the RO/AMC must ensure that it addresses the Veteran's allegation that he fell backwards in December 2005 which caused the claimed back and left shoulder disorders, and that such opinion is based on all the evidence of record. If the examination report does not contain sufficient detail, the RO/AMC must take any appropriate action by return of the report to the examiner for corrective action. See 38 C.F.R. § 4.2, above. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative, should be provided with an appropriate Supplemental Statement of the Case, which sets forth the applicable legal criteria pertinent to this appeal, to include the laws and regulations on service connection, direct and secondary. They should be given an opportunity to respond. 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). (CONTINUED ON NEXT PAGE) 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. 2009). _________________________________________________ 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) (2009).