Citation Nr: 1003307 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 08-02 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected right shoulder disability. 2. Entitlement to service connection for a left shoulder disorder, to include as secondary to a service-connected right shoulder disability. 3. Entitlement to service connection for a left ankle disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Morales, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1994 to June 1997. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The RO characterized the Veteran's claim as one to reopen a final decision. However, the Board finds that the Veteran timely disagreed with the January 2007 rating decision in statements dated January 2007 for the cervical spine disorder and September 2007 for the left shoulder disorder and left ankle disorder. New and material evidence is not needed. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the appellant if further action is required. REMAND It does not appear that the Veteran has been afforded a VA examination to determine the nature and the etiologies of the Veteran's left ankle disorder. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009). As the Veteran has provided an opinion from a Dr. Clavell that other disorders are due to repetitive trauma in service, possibly including the ankle, and as the Veteran's reports of pain in his ankles following parachute jumps are consistent with the terms of his service, remand for an examination is required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical examination when it is necessary to decide the claim). The Veteran stated in his September 2007 notice of disagreement that he was seeing a chiropractor named Dr. Waldemar Carrasquillo at least twice a month. These records have not been associated with the claims file. Regulations provide that efforts must be made to secure all private medical records and VA records that may exist related to the Veteran's claim. 38 C.F.R. § 3.159(c)(1) defines reasonable efforts in obtaining records outside the custody of the federal government as "an initial request for the records, and, if the records are not received, at least one follow-up request." As these records likely contain information on the Veteran's cervical spine disorder and left shoulder disorder, remand is required. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's current and complete treatment records from Dr. Carrasquillo. Evidence of attempts to obtain these records should be associated with the claims file. Do not associate duplicate records with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his left ankle disorder. The entire claims file must be made available to the VA examiner. Pertinent documents should be reviewed, including service treatment records and the opinion of Dr. Clavell. The examiner should conduct a complete history and physical and offer an opinion as to whether a left ankle disorder at least as likely as not had its onset in service, is related to service or to repetitive trauma in service, or was aggravated by service or a service-connected disability. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 causation. All necessary diagnostic testing should be conducted and commented upon by the examiner. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the above action, the claims should be readjudicated. If any claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. 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. 2009). _________________________________________________ MICHAEL MARTIN Acting 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).