Citation Nr: 1122408 Decision Date: 06/09/11 Archive Date: 06/20/11 DOCKET NO. 09-29 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a right foot disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from January 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Muskogee, Oklahoma. The Veteran appeared at a Travel Board hearing before the undersigned at the RO in November 2010. A transcript of the hearing is of record. In November 2010, the Veteran submitted additional evidence without a waiver of initial RO consideration. As this appeal is being remanded for further development, the AMC/RO will have an opportunity to review this evidence in the first instance. 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 on his part. REMAND As it relates to the claim of service connection for a left shoulder disorder, the Board notes that the Veteran was seen with complaints of left shoulder pain on two occasions in October 1967. The examiner rendered an assessment of displacement of the left shoulder. It was replaced by manipulation. The following day, the Veteran was placed on light duty for three days and was told to avoid lifting. On his October 1968 report of medical history, the Veteran checked the "yes" box when asked if he had or had ever had a painful or trick shoulder or elbow. In the physician's summary section of the report, the Veteran was noted to have a painful left shoulder which was mild in nature and nondisabling, with no sequelae. At his November 2010 hearing, the Veteran testified as to the circumstances surrounding the inservice injury to his left shoulder. He noted that he had several more separations prior to his service discharge but had a buddy pop in his shoulder and did not seek medical attention. The Veteran stated that he had had continuous pain in his left shoulder since service. The Board notes that the Veteran has not been afforded a VA examination with regard to his left shoulder. 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). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Id. at 83. As to claim of service connection for a right foot disorder, the Board notes that the Veteran has testified that he injured his right foot when a case of ammunition was dropped on it. He indicated that the case weighed approximately 50 pounds. The Veteran reported that he did not seek treatment for his foot injury as they were moving to another area because of a pending attack. The Board does note that on his October 1968 report of medical history, the Veteran checked the "yes" box when asked if he had or had ever had foot trouble. The Veteran testified that he had had persistent pain in his right foot since the injury and that the pain had worsened over the past ten years. As with the left shoulder, the Veteran has not been afforded a VA examination for his right foot throughout the course of the appeal. Based upon the above facts, the Veteran should be afforded a VA examination to determine the nature and etiology of any right foot disorder, and its relationship, if any, to his period of service. Additionally, the Board observes that at the time of his November 2010 hearing, the Veteran testified as to having been seen at the Mt. Vernon VA Medical Center (MC). The Board notes that there has been no VA treatment records associated with the claims folder. VA is deemed to have constructive knowledge of documents which are generated by VA agents or employees. Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). If those documents predate a Board decision on appeal, are within VA's control, and could reasonably be expected to be part of the record, then "such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." Id. at 613. If such material could be determinative of the claim, a remand for readjudication is in order. Dunn v. West, 11 Vet. App. 462, 466 (1998). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of all treatment providers who have provided treatment for any right foot/left shoulder disorder since service. After obtaining proper authorization from the Veteran obtain copies of these documents and associate them with the claims folder. Regardless of the Veteran's response, obtain copies of all records of the Veteran's treatment from the Mount Vernon VAMC and associate all such available documents with the Veteran's claims folder. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 38 C.F.R. § 3.159(e). 2. The Veteran should be scheduled for a VA examination to determine the etiology of any current left shoulder disorder. All indicated tests and studies should be performed. The claims folder should be made available to the examining physician for review. The examiner should answer the following question: Is it at least as likely as not (50 percent probability or greater) that any current left shoulder disorder, is related to the Veteran's period of active service? Detailed rationale is requested for each opinion that is rendered. The opinion should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 3. The Veteran should be scheduled for a VA examination to determine the etiology of any current right foot disorder. All indicated tests and studies should be performed. The claims folder should be made available to the examining physician for review. The examiner should answer the following question: Is it at least as likely as not (50 percent probability or greater) that any current right foot disorder, if found, is related to the Veteran's period of active service? Detailed rationale is requested for each opinion that is rendered. The opinion should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 4. The Veteran should be advised in writing that it is his responsibility to report for the VA examinations, to cooperate with the development of his claim, and that the consequences for failure to report for a VA examination without good cause include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for any ordered examination, documentation should be obtained that shows that notice scheduling the examination was sent to his last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. To help avoid future remand, the RO must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After undertaking any other development deemed appropriate, the RO/AMC should readjudicate the two service connection issues on appeal, to include consideration of evidence received in November 2010 without a waiver. Consider 38 U.S.C.A. § 1154 (West 2002), as appropriate. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case containing all pertinent laws and regulations and afforded an opportunity to respond before the record is returned to the Board for future review. The appellant 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). _________________________________________________ Paul Sorisio 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) (2010).