Citation Nr: 1035150 Decision Date: 09/17/10 Archive Date: 09/21/10 DOCKET NO. 08-27 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for arthritis of the neck, shoulders, and hands. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active military duty from September 1963 to September 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2010, the Veteran presented sworn testimony during a personal hearing at VA Central Office in Washington, DC, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. Additionally, evidence has been associated with the Veteran's claims folder accompanied by a waiver of local consideration. This waiver is contained in the Veteran's claims folder. See 38 C.F.R. §§ 19.9, 20.1304(c) (2009). Furthermore, on remand, the Agency of Original Jurisdiction (AOJ) will have an opportunity to review this newly submitted evidence before readjudicating the claim. 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 For reasons expressed immediately below, the Board finds that the issue of entitlement to service connection for arthritis of the neck, shoulders, and hands must be remanded for additional evidentiary development. VCAA notice The Veteran seeks entitlement to service connection for arthritis of the neck, shoulders, and hands. He contends that in-service treatment for bursitis of the left shoulder, discussed below, caused arthritis of his shoulders which spread to his neck and hands. See, e.g., the June 2010 Board hearing transcript, page 7. VA regulations provide that service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. In addition, if a nonservice-connected disorder is aggravated by a service-connected disorder, the Veteran is entitled to compensation for the degree of increased disability (but only that degree) over and above the degree of disability existing in the absence of the aggravation. See Allen v. Brown, 7 Vet. App. 439, 448-49 (1995); 38 C.F.R. § 3.310. The Board observes that the Veteran has not been provided notice with respect to his contention that the arthritis of his shoulders caused his current disabilities of the neck and hands. Accordingly, on Remand, such notice must be provided. VA examination In general, in order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). As to element (1), current disability, a private treatment record from Dr. M.M. dated in July 2007 documents an assessment of severe degenerative joint disease of the right and left shoulders. Further, X-ray reports at that time revealed ankylosing spondylosis of the posterior and longitudinal ligament area and decreased joint spaces of the cervical spine. Additionally, a report from Dr. M.M. dated in August 2007 noted deformity of the Veteran's fingers from previous arthritic changes. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Veteran's service treatment records document treatment for pain in his left shoulder in February 1967. The Veteran did not report any heat, tenderness, or swelling in the shoulder. However, upon examination, he was unable to perform abduction over 120 degrees, and pain started at 300 degrees. He was diagnosed with possible bursitis and prescribed six treatments of radiant heat, hydrollator pack, and local massage. Moreover, he noted "painful or 'trick' shoulder or elbow" on his August 1967 separation examination. With respect to Hickson element (3), medical nexus, none of the medical records currently associated with the Veteran's VA claims folder offer an opinion as to a possible causal relationship between the Veteran's disabilities of the shoulders, neck, and hands and his in-service treatment for bursitis of the left shoulder. Moreover, there is no evidence of record which states whether the Veteran's current disabilities of the neck and hands are related to his arthritis of the shoulders. In light of the ambiguities above, the Board finds that an examination and medical nexus opinion must be obtained which addresses the nature of the Veteran's disabilities and whether such are related to his military service, and whether the Veteran's arthritis of the neck and hands were caused or aggravated by his arthritis of the shoulders. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2009) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim]. Accordingly, the case is REMANDED for the following action: 1. The RO should send the Veteran VCAA notice compliant with the requirements of 38 C.F.R. § 3.310 pertaining to secondary service connection claims. 2. The RO should request that the Veteran provide any recent medical examination and treatment records pertaining to his arthritis of the shoulders, neck, and hands. The RO should take appropriate steps to secure any records so identified and associate them with the Veteran's VA claims folder. 3. Thereafter, the Veteran should be afforded a VA examination for the purpose of obtaining an opinion as to the following: a. whether it is at least as likely as not (50 percent or greater) that his current arthritis of the shoulders is etiologically related to his active service, to include treatment for bursitis of the left shoulder. b. whether it is at least as likely as not (50 percent or greater) that his current arthritis of the neck is etiologically related to his active service, to include treatment for bursitis of the left shoulder. c. whether it is at least as likely as not (50 percent or greater) that his current arthritis of the neck was caused or aggravated (i.e. permanently worsen beyond the normal progression of the disability) by the Veteran's arthritis of the shoulders. d. whether it is at least as likely as not (50 percent or greater) that his current arthritis of the hands is etiologically related to his active service, to include treatment for bursitis of the left shoulder. e. whether it is at least as likely as not (50 percent or greater) that his current arthritis of the hands was caused or aggravated (i.e. permanently worsen beyond the normal progression of the disability) by the Veteran's arthritis of the shoulders. The examiner should indicate in his/her report that the claims folder was reviewed. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. A rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran's VA claims folder. In providing the requested opinion, the examiner should be advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ DAVID L. WIGHT 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).