Citation Nr: 1038261 Decision Date: 10/12/10 Archive Date: 10/22/10 DOCKET NO. 03-22 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to July 1971, and from August 1971 to July 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran presented testimony at the Seattle, Washington RO in April 2004. In November 2006, the Board denied the Veteran's appeal The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In September 2008, the Court issued a decision which vacated the Board's denial with respect to the issue of entitlement to service connection for a right shoulder disability only and remanded the case to the Board for action consistent with its decision. The case has been returned to the Board for further appellate action. The Board has removed misfiled documents located in the Veteran's claims file and followed proper procedures for routing the documents to the appropriate responsible party. See Chairmen's Memorandum No. 01-06-20 (July 28, 2006). The Veteran's claims file was reviewed by the Board's Freedom of Information Act Officer. The Board has found that the misfiled documents had no material bearing on the issue on appeal and therefore, the Board has proceeded with the disposition of the appeal. 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 Court's decision with regard to the right shoulder issue was premised on the need for the Board to further consider whether an examination was warranted and provide reasons and basis if it was found that such an examination was not required. Under the VCAA, VA is obliged to provide an examination 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) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran contends that he sustained an injury to his right shoulder during an in-service accident in February or March of 1970 in Alaska. See November 2002 notice of disagreement and April 2004 hearing transcript. He also claims that he went to sick call at the clinic at Ft. Richardson the day following the injury and after seeing the doctor, was sent to the hospital at the Elmendorf Air Force Base, where he had X-rays taken and was prescribed painkillers. See id. The Veteran contends that he has a current right shoulder disability related to the reported in-service injury. Service treatment records are negative for any complaints or findings of a right shoulder injury or disability and at the time of the Veteran's July 1971 separation examination for his first period of service, normal findings were reported for the upper extremities. Furthermore, on his June 1972 report of medical history, the Veteran checked "no" boxes when asked if he had a painful or trick shoulder or elbow; arthritis, rheumatism or bursitis; or bone, joint or other deformity. At the time of his June 1972 physical examination, normal findings were again reported for the upper extremities, and the Veteran indicated that he was in good health. During his April 2004 hearing, the Veteran testified that after seeking medical treatment in service for his shoulder injury, he continued to have pain in the shoulder, and that at times he self-medicated with over the counter pain relievers such as Tylenol and Bayer, but when the pain got too bad, he sought medical treatment at the VA hospital in Phoenix, Tucson and Spokane. He testified that he first sought VA treatment for his shoulder in the late eighties. He also testified that his shoulder condition has progressively gotten worse since his in- service injury. See April 2004 hearing transcript. The record documents current degenerative disc disease of the cervical spine. Thus, the element of a current disability is satisfied. Furthermore, the Board has already found that the Veteran's testimony regarding an injury in service provides competent evidence on the element of an in-service incurrence of a disease or injury. Finally, although contemporaneous evidence of a right shoulder disability in the years following service is not of record; the Board finds that the Veteran's testimony at his April 2004 hearing does provide credible evidence of continuity of symptomatology. Therefore, an examination and opinion are needed to determine whether the Veteran's currently diagnosed right shoulder disability is related to service. 38 U.S.C.A. § 5103A(d) (West 2002). The Veteran's representative has reported the Veteran's contention that there is pertinent evidence that is missing from the claims file that may have been misfiled in the claims folder of the claimant whose records were misfiled in the Veteran's file. The representative has asked VA to investigate whether the Veteran's documents have been misfiled in "claimants identified by the Veteran." The Veteran's contention requires further investigation. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to specify the evidence that is missing in his claims folder and may have been misfiled and to identify the claimants whose files might contain this evidence. The agency of original jurisdiction should then determine whether any pertinent records are contained in the claims files of those claimants. 2. Afford the Veteran a VA examination to determine the etiology of his current right shoulder disability. The examiner should provide an opinion as to whether the Veteran's current shoulder disability is, at least as likely as not, related to a disease or injury in service. The examiner should review the claims folder and provide a rationale for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If the examiner rejects the Veteran's reports, the examiner should provide a rationale for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 3. If the benefits sought on appeal are not granted, a supplemental statement of the case should be issued. The case should be returned to the Board, if otherwise in order. 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). _________________________________________________ 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).