Citation Nr: 1014516 Decision Date: 04/16/10 Archive Date: 04/29/10 DOCKET NO. 08-15 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for an upper respiratory infection. 2. Entitlement to service connection for a left wrist, hand and finger disability. 3. Entitlement to service connection for a left leg disability. 4. Entitlement to service connection for a thoracic spine disability. 5. Entitlement to service connection for a right shoulder disability. 6. Entitlement to service connection for a left shoulder disability. 7. Entitlement to service connection for migraines. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The Veteran reportedly had active duty service from June 1967 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was filed in September 2006, a statement of the case was issued in April 2008, and a substantive appeal was received in May 2008. The March 2006 rating decision also denied service connection for anxiety, but this benefit was subsequently granted by rating decision in April 2008. The issue of service connection for anxiety is therefore no longer in appellate status. 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 The Board notes that the Veteran stated in a September 2008 VA examination report that he is receiving Social Security Administration (SSA) disability benefits. The record does not reflect an attempt by VA to secure copies of the SSA determination pertaining to the claimant or the medical records considered in conjunction with the determination. In Murincsak v. Derwinski, 2 Vet. App. 363 (1992) the U.S. Court of Appeals for Veterans Claims (Court) held, in essence, that records pertaining to SSA disability claims in possession of SSA are constructively in possession of VA (See 38 C.F.R. § 3.201), and that if VA does not seek to secure such records from SSA, it violates its duty to assist the claimant under 38 U.S.C.A. § 5107(a). Memorandum decisions of the Court and Joint Motions by the parties endorsed by the Court have consistently adhered to this precedent. The Board notes that service treatment records dated in January 1969 reflect that the Veteran complained of an upper respiratory infection. Private medical records dated in March 1971 reflect that the Veteran was assessed with a mild upper respiratory infection. The Board notes that service treatment records dated in February 1968 reflect that the Veteran complained that his left hand and arm was limp. The Veteran stated in the September 2006 notice of disagreement that swelling of his left wrist, hand and fingers has been continual from separation to present. On the VA examination in March 2007, the examiner indicated that there was no left hand edema. The opinion was that there was no evidence of chronic edema of the left wrist, fingers or hand and "that condition is not likely to have been caused by or the result of the symptoms that were found in 1968." There is still some question as to the nature of any left wrist, finger or hand disability. The Board notes that service treatment records dated in February 1968 reflect that the Veteran complained of back pain. VA outpatient treatment records dated in September 2008 reflect that the Veteran was assessed with low back pain. The Board notes that service treatment records dated in February 1968 reflect that the Veteran complained of shoulder pain. The Veteran stated in the September 2006 notice of disagreement that shoulder pain has been continual from separation to present. A service Report of Medical History dated in April 1969 for annual examination purposes reflects that the Veteran complained of frequent or severe headaches. Private treatment records from Dr. B.W. dated in January 1998 reflect that the Veteran was assessed with chronic daily headaches. Under the circumstances of this case where the Veteran has reported pertinent symptoms during service and there is post- service evidence of the claimed disabilities, as noted above, the Board believes it reasonable to afford the Veteran an opportunity to report for a VA examination. Accordingly, the case is REMANDED for the following actions: 1. Secure from SSA copies of their determination on the Veteran's claim for SSA disability benefits, as well as copies of the complete medical records considered in conjunction with that determination. Upon receipt of those records, the RO should review them and arrange for any further development suggested by the information therein. 2. The Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the claimed upper respiratory infection. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any upper respiratory infection capable of diagnosis should be clearly reported. If an upper respiratory infection is diagnosed, then the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that such upper respiratory infection is causally related to the Veteran's active duty service. 3. The Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the claimed left wrist, hand and finger disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any left wrist, hand and finger disability capable of diagnosis should be clearly reported. If a left wrist, hand and finger disability is diagnosed, then the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that such left wrist, hand and finger disability is causally related to the Veteran's active duty service. 4. The Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the claimed thoracic spine disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any thoracic spine disability capable of diagnosis should be clearly reported. If a thoracic spine disability is diagnosed, then the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that such thoracic spine disability is causally related to the Veteran's active duty service. 5. The Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the claimed right shoulder disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any right shoulder disability capable of diagnosis should be clearly reported. If a right shoulder disability is diagnosed, then the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that such right shoulder disability is causally related to the Veteran's active duty service. 6. The Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the claimed left shoulder disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any left shoulder disability capable of diagnosis should be clearly reported. If a left shoulder disability is diagnosed, then the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that such left shoulder disability is causally related to the Veteran's active duty service. 7. The Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the claimed migraines. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any migraines capable of diagnosis should be clearly reported. If migraines are diagnosed, then the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that such migraines are causally related to the Veteran's active duty service. 8. Then the RO should readjudicate the matters on appeal. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the claimant and his representative the opportunity to respond. The case should then be returned to the Board for further appellate review. The Veteran and his representative have the right to submit additional evidence and argument on the 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). _________________________________________________ V. L. JORDAN 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).