Citation Nr: 1237809 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 11-17 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to service connection for a back disorder. 3. Entitlement to a compensable evaluation for the service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Nigam INTRODUCTION The Veteran served on active duty from June 1945 to November 1946. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In October 2012, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of this hearing is associated with the claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Of preliminary importance, in April 2011 a "Formal Finding on the Unavailability of Service Treatment Records for Active Duty Period of Service dated June 26, 1945 to November 27, 1946" was issued by the VA Appeals Team. This Memorandum reflects that the original claims file was rebuilt and that all attempts to locate the Veteran's service treatment records have yielded negative results. When service treatment records are lost or missing, VA has a heightened obligation to satisfy the duty to assist. In such circumstances, VA also has a heightened duty "to consider the applicability of the benefit-of-the-doubt rule, to assist the claimant in developing the claim, and to explain its decision..." Cromer v. Nicholson, 19 Vet.App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet.App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet.App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). A VA Form 21-4138, Statement in Support of Claim, received in October 2009, reflects the Veteran reported injuring his right shoulder while in Ordinance School at Aberdeen Proving Grounds, Maryland. He indicated that he was taught to disassemble, repair, and assemble all hand guns, shoulder weapons and machine guns, and that after they were assembled he would run each weapon through a test firing procedure. He claimed that the kick from the shoulder weapons caused his right shoulder to hurt and caused the muscle to pull away from the bone, which caused continuous pain. The Veteran contended that he continued to experience his right shoulder disorder throughout his tour at Fort Read, Trinidad, and that it had given him occasional trouble since service. He asserted that he had treatments and therapy throughout his life to manage the pain, and that he unsuccessfully underwent surgery in the mid-1990's to reattach the muscles to the bone. During the October 2012 hearing, the Veteran testified that he has experienced problems with his right shoulder since his separation from service. He also indicated that his shoulder problems might be related to his back disorder. The DD Form 214, Certificate of Release or Discharge from Active Duty, reveals a military occupational specialty (MOS) of small arms weapons mechanic. The Board finds the Veteran's description of a right shoulder injury sustained during service to be competent, credible, and consistent with the circumstances of his service, and therefore to be of significant probative value. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As mentioned, the first and most fundamental requirement for any service-connection claim is the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Private treatment records show orthopedic and chiropractic treatment for the right shoulder since approximately 1985. The private treatment records also indicate that in August 1995 the Veteran underwent surgical repair, including arthroplasty, debridement, acromioplasty and resection of the right distal clavicle, for rotator cuff arthropathy of the right shoulder and acromioclavicular joint arthrosis of the right shoulder. A July 1995 private MRI report reveals an impression of the rotator cuff not definitely identified on the base of the study. Some remnants of the rotator cuff were determined to possibly be present; however, the appearance was most consistent with a chronic tear. The August 1995 private operative report shows observations of marked degenerative changes under the head of the humerus, and a chronically torn rotator cuff. It was noted that the biceps tendon was released and attempts were made to advance it, but even with all of these attempts, even with the shoulder in full abduction, no amount of effort could even closely approximate coverage. Consequently, the determinative issue is whether the Veteran's right shoulder disorder is somehow attributable to the injury sustained during his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The Board finds that a medical examination would be useful in assessing whether such a relationship exists. With respect to the claim for service connection for a back disorder, a VA Form 21-4138, Statement in Support of Claim, received in October 2009, reflects the Veteran reported injuring his back in service while unloading boxes of M1 rifles from a 3/4 tome truck to the loading dock at the storage warehouse. He claimed he wrenched his back, was transferred to sick call, and was sent to the hospital for 2 days, where he was treated with ice packs. He reported that he was sent back to his company but could not work for a period of time, was given a back brace to wear, and was put on light duty. He contended that since that time, he had a weak back and could not lift heavy things. In October 2012, the Veteran, his friends who have known him since 1951 and 1960, and his spouse who has known him since 1981, provided lay statements reflecting observations that his back symptomatology has existed since his service. Private treatment records show orthopedic and chiropractic treatment for the right lower back and neck since approximately 1985. These records also indicate that in March 1998 the Veteran was involved in a motor vehicle accident in which he strained his back. Notably, he was treated for degenerative joint disease of his lumbar spine, L4 to L5 and L3 to L4 with some nerve root irritation prior to the March 1998 motor vehicle accident. In September 2012 the Veteran's private chiropractor opined that the Veteran indicated that "his ailment came from injuries sustained during his military tour of duty." The chiropractor noted that, in reviewing his chart history, it was hard to tell how old the injuries are due to the time lapse; however, the chiropractor opined that it is at least as likely as not that the Veteran's back condition is related to his military service. The chiropractor failed to provide explanation or rationale for this conclusion. Also in September 2012, the Veteran's private orthopedist indicated that since 1995 the Veteran had been treated for a damaged back, which the Veteran related to his military service. The orthopedist noted that the back problem had also reduced the Veteran's mobility as far as normal everyday tasks. The orthopedist opined that it was at least as likely as not that the back injury was related to the Veteran's military service. The orthopedist failed to provide explanation or rationale for this conclusion. As noted, in April 2011, a Formal Finding on the Unavailability of Service Treatment Records for Active Duty Period of Service dated June 26, 1945 to November 27, 1946 was issued by the VA Appeals Team. This Memorandum reflects that the original claims file was rebuilt and that all attempts to locate the Veteran's service treatment records yielded negative results. The Board notes, however, that in-service hospitalization and/or clinical records are sometimes stored at the National Personnel Records Center (NPRC) separately from a Veteran's other service treatment records. The Veteran claims to have received in-service hospital treatment while stationed at Fort Read, Trinidad. No attempt has been made to solicit records from this facility. A remand is required for the purpose of obtaining any such separately stored records which may exist. Further, VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2012). In this case, although the Veteran's service treatment records are missing with regard to his contended back injury, the Veteran has provided credible testimony of the in-service events. Accordingly, because the etiology of the Veteran's back disorder remains unclear to the Board, and the Veteran has not yet been afforded a VA examination regarding the contentions set forth as to the etiology of his back disorder, VA examination should be scheduled prior to further adjudication. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, an attempt must also be made to obtain private treatment records from a "Dr. Wight," mentioned during the Veteran's October 2012 Board hearing. With respect to the claim for a compensable evaluation for the service-connected bilateral hearing loss, the Board notes that the Veteran last underwent VA examination to evaluate his hearing in November 2009, which indicated findings of noncompensable hearing loss. In April 2011, a VA audiology report also showed findings of noncompensable hearing loss. During his October 2012 Board hearing, the Veteran and his spouse testified that his hearing disability increased in severity since his previous VA examination. In October 2012, the Veteran provided a report of an audiology evaluation performed by a private audiologist. This report and accompanying audiogram shows findings that suggest that the Veteran's hearing loss has worsened since the April 2011 VA audiology evaluation. Unfortunately, the report is incomplete, as it provides Maryland CNC Speech Discrimination scores of 76% in the right ear and 84% in the left ear, but does not provide audiological findings for all relevant puretone thresholds. A new VA examination is required to ascertain any material change in the Veteran's hearing disability. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should obtain the Veteran's records from the National Personnel Records Center (NPRC) related to his reported hospitalization at Fort Read (alternatively spelled "Reed" and "Reid" in the record), Trinidad. The Board notes that service hospitalization and/or clinical records are sometimes stored separately from the Veteran's other service medical records, and a specific request should be made for such separately stored hospitalization and/or clinical records. 2. The RO/AMC should also take appropriate steps to contact the Veteran in order to obtain copies of all outstanding VA and/or non-VA treatment records referable to a right shoulder disorder, a back disorder and to his bilateral hearing loss. In particular, the Veteran should be asked to provide any treatment records from "Dr. Wright," a practitioner mentioned during his Board hearing. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. The RO/AMC must review the claims file and ensure the development actions have been conducted and completed. Then the RO/AMC must schedule the Veteran for a VA examination by a clinician with appropriate expertise. The purpose of the examination is to determine the nature and etiology of any diagnosed right shoulder and back disorder. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) The examiner will be advised: The purpose of the examination is to ascertain the etiology of the claimed right shoulder and back disorders. The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion. c) With respect to the review of the claims file, the Board calls the examiner's attention to the following: i) The Veteran's, his friends' and his family's lay assertions and hearing testimony attesting to the continuity of his claimed right shoulder and back disorders since his military service. ii) The private chiropractic and orthopedic records showing ongoing treatment for a right shoulder and back disorder since, at least, 1985. iii) The September 2012 medical opinion from the Veteran's private chiropractor, which relates his right shoulder and back disorder to injury sustained during his military service. iv) The September 2012 medical opinion from the Veteran's private orthopedist, which relates his disorders to injury sustained during his military service. d) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. e) The examiner must specifically comment as to the etiology, nature and severity of the Veteran's claimed right shoulder back disorder, and should opine as to the likely continuity of symptomatology for the should and back disorder since the Veteran's military service. The examiner should specifically address whether the current findings are consistent with the types of injuries reported by the Veteran as having occurred in service, as opposed to being due to other types of injuries or degeneration due to age. f) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner is to specifically address in his or her conclusion the issue contained in the purpose of the examination, as noted above. 4. The RO/AMC must also schedule the Veteran for an audiological examination with an audiologist. The purpose of the examination is to determine the current severity of the Veteran's bilateral hearing loss, and its impact on his employability and daily activities. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) The examiner will be advised: The purpose of the examination is to ascertain the severity of the service-connected bilateral hearing loss. The question of the source or etiology of the disorder is only relevant to the extent that it may provide information as to the severity of the disorder. The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion. c) With respect to the review of the claims file, the Board calls the examiner's attention to the following: i) The reports of the Veteran's November 2009 QTC examination, and April 2011 VA audiology evaluation. ii) The October 2012 private audiology report, which indicates an increase in the severity of the Veteran's hearing loss but does not provide complete evaluation of the pure tone thresholds necessary to rate the claim. d) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. e) The examiner must, if at all possible, interpret and explain the findings of the October 2012 private audiology report in terms relative to the diagnostic criteria for evaluating hearing loss. f) The examiner must, in addition to reporting objective test results, fully describe the functional effects of the Veteran's hearing loss disability on his occupational functioning, daily life and ordinary activities. g) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner is to specifically address in his or her conclusion the issue contained in the purpose of the examination, as noted above. 5. Following completion of all indicated development, the RO/AMC must readjudicate the remaining claims in light of all the evidence record. If any benefit sought on appeal remains denied, the RO/AMC must furnish a fully responsive supplemental statement of the case (SSOC) to the Veteran and his representative and afford them with a reasonable opportunity for response. 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. 2012). _________________________________________________ MICHAEL MARTIN 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) (2012).