Citation Nr: 1034167 Decision Date: 09/13/10 Archive Date: 09/21/10 DOCKET NO. 06-22 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a lower back disability. 3. Entitlement to service connection for a bilateral shoulder disability. 4. Entitlement to service connection for hypertension, to include as secondary to service connected Type II diabetes mellitus with bilateral peripheral neuropathy, nephropathy of the feet, and retinopathy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1970. He received the Bronze Star medal. These matters come before the Board of Veterans' Appeals (Board) from March and July 2005 rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Buffalo, New York. In the March 2005 decision, the RO denied entitlement to service connection for hypertension. In the July 2005 decision, the RO denied entitlement to service connection for residuals of an injury to the neck, shoulders, and back. 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. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McClendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McClendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McClendon, 20 Vet. App. at 83. The Veteran's medical records reveal that he has been diagnosed as having current neck and lower back disabilities. For example, an April 2004 radiology report from Massena Memorial Hospital indicated diagnoses of degenerative arthritis of the cervical and lumbosacral spines. His medical records, including an April 2004 VA clinic evaluation note, also reveal that he has reported bilateral shoulder pain and discomfort on numerous occasions. The most recent clinical evidence of a diagnosed left shoulder disability is a July 2002 examination report from Hermon Health Center (Hermon) which indicated diagnoses of left bicipital tendonitis and rotator tendonitis. Thus, there is evidence of current neck, lower back, and bilateral shoulder disabilities. In his November 2004 claim (VA Form 21-4138) the Veteran stated that he injured his neck, back, and shoulders while serving in Vietnam when a tree fell on his head while he operated a bulldozer. In an April 2005 letter, a fellow serviceman stated that he served with the Veteran in Vietnam and that the Veteran injured his neck and back while he operated a bulldozer. The Veteran's service treatment records confirm that in April 1969 he was injured when a tree fell on his head while serving in Vietnam. Also, he injured his lower back while changing a tire in August 1970 and was diagnosed as having a mild strain. On numerous occasions, the Veteran has reported that he has experienced neck, back, and bilateral shoulder pain ever since his in-service injury. Furthermore, in a November 2004 letter, the Veteran's wife stated that she had been married to the Veteran since June 1969 and that he had experienced neck, back, and shoulder pain throughout their entire marriage. In its June 2010 statement, the Veteran's representative argued that the Veteran was entitled to VA examinations for his neck, lower back, and shoulder disabilities. As there is evidence of current neck, lower back, and bilateral shoulder disabilities, in-service neck, lower back, and shoulder injuries, and evidence as to continuity of symptomatology indicating the Veteran's disabilities may be related to service, the Board agrees that VA's duty to obtain examinations as to the nature and etiology of the Veteran's neck, lower back, and bilateral shoulder disabilities is triggered. Examinations are needed to obtain medical opinions as to the relationship of the Veteran's neck and lower back disabilities to service. An examination is also needed to determine whether the Veteran has a current bilateral shoulder disability and to obtain a medical opinion as to the relationship of any such disability to service. As for the claim for service connection for hypertension, the Veteran's medical records, including a September 2004, VA examination report, reveal that he has been diagnosed as having essential hypertension. The Veteran contends that his hypertension is secondary to his service connected diabetes mellitus. In September 2004, the physician who conducted the September 2004 VA examination provided an opinion that the Veteran's hypertension was not aggravated by his service connected diabetic nephropathy. This opinion was based on the fact that the Veteran had been prescribed medications for hypertension for the previous 10 to 12 years (since approximately 1992-1994) and that he was diagnosed as having diabetes 7 years prior to the September 2004 opinion (1997). In other words, hypertension pre-existed diabetes. Also, his blood pressure was well controlled at the time of the September 2004 VA examination. The September 2004 opinion is inadequate because the physician's conclusion was, in part, based upon an inaccurate history. A March 2005 note from a licensed practical nurse from Hermon reveals that the Veteran was diagnosed as having both hypertension and elevated blood sugar in November 1988. The Veteran's medical records from Hermon indicate that he was diagnosed as having elevated blood pressure in April 1985, was diagnosed as having elevated sugar in December 1988, and was diagnosed as having adult onset diabetes mellitus in April 1991. As the physician who provided the September 2004 opinion relied on an inaccurate history, the opinion is inadequate. See Boggs v. West, 11 Vet. App. 334, 345 (1998); see also Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Furthermore, no opinion was provided as to whether the Veteran's hypertension was directly related to service. Thus, a new VA examination is necessary in order to obtain opinions as to the relationship of the Veteran's hypertension to service and his service connected diabetes mellitus. An undated Social Security Administration (SSA) notice of award letter reveals that the Veteran was entitled to SSA disability benefits beginning in December 2003. An April 2004 VA treatment note indicates that the Veteran reported that he was filing for SSA disability benefits for diabetes and quadruple bypass surgery. The United States Court of Appeals for Veterans Claims has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). As the Veteran had filed for SSA disability benefits for diabetes and he is claiming service connection for hypertension as secondary to diabetes, the medical records related to the SSA's disability determination may be relevant. As these records have not yet been associated with the claims file, a remand is also necessary to obtain such records. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. 2. After any SSA disability records have been obtained and associated with the Veteran's claims file, schedule him for a VA examination to determine the etiology of his current cervical spine disability. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current cervical spine disability had its onset in service, is related to his in-service neck injury, or is otherwise the result of a disease or injury in service. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report an in-service neck injury, his symptoms and history, and such reports must be considered in formulating any opinions. 3. After any SSA disability records have been obtained and associated with the Veteran's claims file, schedule him for a VA examination to determine the etiology of his current lower back disability. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current lower back disability had its onset in service, is related to his in-service lower back injuries, or is otherwise the result of a disease or injury in service. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report an in-service lower back injury, his symptoms and history, and such reports must be considered in formulating any opinions. 4. After any SSA disability records have been obtained and associated with the Veteran's claims file, schedule him for a VA examination to determine the nature and etiology of any current bilateral shoulder disability. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any current bilateral shoulder disability had its onset in service, is related to the Veteran's in-service bilateral shoulder injury, or is otherwise the result of a disease or injury in service. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report an in-service bilateral shoulder injury, his symptoms and history, and such reports must be considered in formulating any opinions. 5. After any SSA disability records have been obtained and associated with the Veteran's claims file, schedule him for a VA examination to determine the etiology of his current hypertension. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current hypertension had its onset in service or in the year immediately after service, or is the result of a disease or injury in service. The examiner should also opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current hypertension was either caused or aggravated by his service- connected diabetes mellitus. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered in formulating any opinions. 6. The Agency of Original Jurisdiction (AOJ) should review the examination reports to ensure that they contain the information requested in this remand and are otherwise complete. 7. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Veteran has 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. 2010). _________________________________________________ Mark D. Hindin 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).