Citation Nr: 1127780 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 07-39 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a right elbow disorder. 2. Entitlement to service connection for a right shoulder disorder. 3. Entitlement to service connection for a neck disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. H. Stubbs, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1984 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran requested a hearing before the Board at her local RO. She was scheduled for such a hearing in September 2009 and was notified of the hearing date in July 2009. However, she failed to appear for her scheduled hearing. Therefore, her hearing request is considered withdrawn. 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 A remand is required in regards to the Veteran's claim for service connection. Although a remand will cause additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. Such development would ensure that her due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2010), are met. In September 2005, the Veteran filed claims of entitlement to service connection for a neck disorder, right shoulder disorder, and right elbow disorder. She stated that she was treated for symptoms related to each claim in service, that she had recently been involved in a motor vehicle accident in 2001, and that she had received ongoing treatment for each disorder since the accident. The Veteran's service treatment records do not document any complaints of or treatment for a right elbow injury or disorder. During her August 1984 enlistment examination, the Veteran did not complain of any elbow, shoulder, or neck symptoms, and she was noted to have a normal examination of the upper extremities and spine. During her November 1984 pre-training examination, she complained of recent muscular pain in her right shoulder and neck, although she stated that she was "fine now." In March 1985, she was struck on the head with a frying pan, but did not lose consciousness. She was assessed as having a contusion to the head, and it was noted that a concussion had to be ruled out. In February 1986, the Veteran complained of right shoulder pain. She reported shoveling the snow for several days and developing pain in her right shoulder and having a "stiff neck." She was assessed with musculoskeletal pain. In November 1987, the Veteran reported awakening with a "stiff neck" with loss of feeling in her fingers. She also reported pain and "tingling" in her right shoulder. She denied having an injury to her shoulder or neck, but also stated she was in a "hydrovalve explosion last week" without injury. She reported similar symptoms occurring in 1986 after moving furniture. The Veteran was assessed with a right deltoid muscle strain and was referred to physical therapy, which she attended for four days. On the fourth day, it was noted she had very slight limitation of right lateral flexion and right rotation and a mild trigger point over the right upper trapezius. Her goals were noted to have been met. The Veteran also underwent lumbar spine injury in service, but had a medical board examination in March 1990 during which she was found not fit for duty by reason of physical disability in November 1990. Her March 1990 examination did not note neck, shoulder, or elbow complaints or diagnoses. Instead, she was noted to have a normal upper extremity examination, and her abnormal spine examination did not mention her cervical spine. Following her period of service, an October 1992 x-ray of the Veteran's cervical spine was negative for a fracture, but noted a "suggestion of slight interspace narrowing C5-6." In April 1993, the Veteran was afforded VA joints and spine examinations. X-ray findings revealed narrowing of C5-C6, and she was assessed as having cervical arthritis. She did not have any swelling or deformity of the shoulder joint, and she was not diagnosed with a shoulder or elbow disorder. In January 1994, the Veteran sought treatment at a private medical center for evaluation of a work-related neck injury. She reported lifting 50 pounds of dough in December 1993 and developing a sudden onset of pain in her right posterior neck and shoulder. She indicated that a worker's compensation claim had been filed for the incident. An MRI showed a herniated disk at C5-6, which was displacing the spinal cord and nerve root. She also had a small midline C4-5 disk, which was not displacing any neurologic structures. A May 1994 MRI revealed right paramedian disk herniation at C5-6, which was unchanged from the January 1994 MRI findings. In August 1997, the Veteran underwent a C5-6 cervical discectomy due to a principle diagnosis of cervical spondylosis. The history of the illness was noted to be the December 1993 work injury. An October 2002 treatment record from a private physician, O.N. (initials used to protect the Veteran's privacy), noted that the Veteran complained of right elbow pain. She reported having been in a motor vehicle accident in October 2001 during which she developed immediate pain in her right shoulder. An x-ray of her shoulder at the time of the injury was normal, as was a cervical spine x-ray, which was obtained due to her prior fusion. She stated that her shoulder pain had gradually subsided since the accident, but she had developed a gradual progressive pain in her right elbow. She was assessed with lateral epicondylitis of the right elbow and mild residual rotator cuff syndrome. Following physical therapy, her lateral epicondylitis was noted to have resolved in May 2002; however, by May 2003, the Veteran was again complaining of right shoulder and right elbow pain. In March 2006, the Veteran was afforded a VA joints and spine examination. However, her claims file was not reviewed in conjunction with the examination. Applicable regulations state that it is essential that, both in the examination and evaluation, each disability be viewed in relation to its history. See 38 C.F.R. § 4.1. In this regard, medical examinations generally should "take into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination which takes into account the records of prior medical treatment so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); see also 38 C.F.R. § 3.326 (2002); VAOPGCPREC 20-95 (July 14, 1995) (a VA examiner must review a claimant's prior medical records when such a review is necessary to ensure a fully informed examination or to provide an adequate basis for the examiner's findings and conclusions). Moreover, the March 2006 VA examiner did not provide an opinion regarding the etiology of the Veteran's claimed disorders. As the VA examiner was unable to properly review the Veteran's claims file and did not provide the necessary medical opinions, the Board finds that the examination is inadequate for appellate review purposes. Accordingly, the Veteran should be afforded new VA examinations for her cervical spine and right upper extremities disorders. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) Additionally, as there is an indication in the record that the Veteran has received Worker's Compensation for a neck injury, an attempt should be made to obtain any records associated with her claim. Similarly, it is noted in the record that the Veteran was taken to a hospital following her October 2001 motor vehicle accident; however, records from that hospitalization are not of record. On remand, an attempt should be made to obtain those records and associate them with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for her neck, right shoulder, and right elbow. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. A specific request should be made for any VA treatment records dated between January 1991 and April 1993 and for medical records pertaining to the Veteran's October 2001 hospital visit following a motor vehicle accident. 2. The RO/AMC should request that the Veteran provide information pertaining to worker's compensation benefits. In particular, she should be asked to state when she applied for such benefits and whether she was awarded such benefits due to on-the-job injuries, including her December 1993 neck injury. To the extent possible, the RO should attempt to obtain any relevant records regarding the Veteran's claim(s) for worker's compensation benefits, including applications and decisions. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of any right elbow disorder, right shoulder disorder, and neck disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran did have symptomatology in service, sustained a work-related neck injury in January 1994, and was involved in a motor vehicle accident in October 2001 during which she developed right shoulder pain. The examiner should identify all right elbow, right shoulder, and neck disorders that have been present at any point during the pendency of the appeal. It should be noted that the United States Court of Appeals for Veterans Claims (Court) has held that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 312 (2007). For each diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder is causally or etiologically related to the Veteran's symptomatology in service or is otherwise related to his military service. (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 conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2010), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on her claims. 4. After completion of the above actions and any additional development deemed necessary, the RO/AMC must readjudicate the Veteran's claims of entitlement to service connection on the basis of all the evidence on file and all governing legal authority. If the benefit sought on appeal is not granted, the Veteran and her representative must be provided with a supplemental statement of the case (SSOC). An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. 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. 2010). _________________________________________________ JESSICA J. WILLS 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).