Citation Nr: 1307384 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 09-23 407A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE 1. Entitlement to service connection for recurrent headaches. 2. Entitlement to service connection for a right shoulder, clavicle tear disability. 3. Entitlement to service connection for degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from February 1987 to January 1994 and in the Naval Reserves from January 1994 to May 2007. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied service connection for recurrent headaches, a right shoulder clavicle tear disability, and degenerative disc disease of the cervical spine. On his July 2009 substantive appeal, the Veteran indicated that he wanted a hearing before the Board to be heard in Washington, DC. In a September 2012 written statement, the Veteran withdrew his request for a hearing. Therefore, the request for a hearing has been withdrawn.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 The record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the claims of entitlement for service connection for recurrent headaches, a right shoulder clavicle tear disability, and degenerative disc disease of the cervical spine. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). The Veterans Claims Assistance Act of 2000 (VCAA) requires that VA make reasonable efforts to obtain relevant records that the claimant has adequately identified and authorized the VA to obtain. 38 U.S.C.A. § 5103A (West 2002). In a case of records held by a Federal department or agency, VA shall continue their efforts to obtain these records unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992); VAOPGCPREC 12-95, 60 Fed. Reg. 43186 (1995) ("...an [agency of original jurisdiction's] failure to consider records which were in VA's possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error.") Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Active military, naval, or air service includes any period of active duty for training (ADT) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (IDT) during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) and (d) (2012). ADT includes full-time duty performed for training purposes by members of the Reserves and National Guard of any state. 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c)(1) and (3). Presumptive periods do not apply to ADT or IDT. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for a disability resulting from a disease or injury incurred or aggravated while performing ADT, or from an injury incurred or aggravated while performing IDT. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002). In his May 2007 claim, the Veteran reported that he injured his right shoulder while on two weeks of active duty but did not describe how the injury occurred. He reported that he had degenerative disc disease of the cervical spine due to a fall and recurrent headaches due to a fall and multiple auto accidents. In his July 2009 substantive appeal (VA Form 9), the Veteran contends that all of his conditions (recurrent headaches, right shoulder disability, degenerative disc disease of the cervical spine) were caused by a basketball injury he suffered on April 11, 2002. An April 12, 2002 service treatment record from the Norfolk Naval Station confirms that the Veteran was treated for neck stiffness and tingling in his arm subsequent to a basketball injury. According to the Veteran, this basketball injury occurred during a two week period of ADT. See Veteran's July 2009 and May 2007 statements. The Veteran served with the Navy Reserves from January 1994 to May 2007. The current evidence in the claims file includes Navy Standard Integrated Personnel records for the Veteran's IDT detail from August 2000 to April 2006. IDT detail reports from January 1994 to July 2000 and from April 2006 to May 2007 are not of record. Moreover, the record does not contain any evidence relating to ADT for any period of the Veteran's Navy Reserves service. Given the Veteran's contention that his conditions are a result of an injury that occurred on ADT, a period of service for which service connection may be granted, a remand is required to confirm his periods of ADT. Further, the Veteran was provided a VA medical examination in December 2007. The examiner reported the Veteran's history, conducted a physical examination, and provided diagnoses of right shoulder impingement syndrome and cervical degenerative disc disease. The Veteran reported that he had been diagnosed with recurrent headaches and said that the condition had existed since 1988. He reported that he had headaches on the average of once per week and described the symptoms associated with those headaches. The examiner noted that the Veteran "reports no symptoms in regards to this condition." The Veteran also reported that the cervical disc and right shoulder conditions had existed since 2002. A diagnosis for recurrent headaches was not provided as the examiner found no pathology for which to render a diagnosis. The examiner did not provide an opinion as to whether any of the Veteran's diagnoses had their onset in or were otherwise related to service. In addition, while the examiner found that there was no pathology to render a diagnosis of recurrent headaches, the Veteran did report symptoms of headaches despite the examiner's notation that no symptoms regarding that condition. There is a conflict in the medical opinion as to whether there is a current diagnosis of a headache condition that must be resolved. Moreover, it is unclear whether the examiner had access to the Veteran's claims file and service treatment records. Because VA undertook to provide an examination and medical opinion, the Board must ensure that such an opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An adequate examination and medical opinion addresses the appropriate theories of entitlement and provides a supporting rationale for any medical opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007). Thus, the Board considers the examination report to be insufficient, and the case must be remanded to provide the Veteran with an addendum examination. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should attempt to verify through official sources the following periods of the Veteran's Navy Reserves service: (a) Active duty for training ("ADT") performed by the Veteran while serving with the Navy Reserves from 1994 to 2007. This should include, but is not limited to, contacting the National Personnel Records Center ("NPRC") to verify all the Veteran's dates of service. (b) Inactive duty for training ("IDT") performed by the Veteran while serving with the Navy Reserves from January 1994 to July 2000 and April 2006 to May 2007. This should include, but is not limited to, contacting the NPRC to verify all the Veteran's dates of service. 2. Thereafter, the RO/AMC should refer the case to the VA examiner who conducted the December 2007 VA examination (or a suitable substitute) for an addendum medical opinion. If such examiner indicates that he cannot respond to the Board's question without examination of the Veteran, such should be afforded the Veteran. The claims folder, along with a copy of this remand must be made available to the examiner for review. The examiner should review the claims folder, to include any additional evidence associated with the claims file, and respond to the following: The Veteran has reported that his recurrent headaches, right shoulder disability, and cervical degenerative disc disease, are a result of a basketball injury he suffered while on active duty in April 2002. He has also reported that reported that he had degenerative disc disease of the cervical spine due to a fall and recurrent headaches due to a fall and multiple auto accidents. The examiner must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's claimed recurrent headaches, right shoulder disability, and cervical degenerative disc disease had their onset in April 2002, or are otherwise related to service. All opinions expressed must be supported by complete rationale. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated and he/she must discuss why an opinion is not possible. 3. After undertaking any other development deemed essential in addition to that specified above, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC). The Veteran and his representative should be given an opportunity to respond to the SSOC. The Veteran 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. 2012). _________________________________________________ K. J. ALIBRANDO 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).