Citation Nr: 1308752 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 09-40 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to September 1973 and from September 1974 to September 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, in December 2006 and June 2011. The former denied the claims for service connection and the latter denied the claim for entitlement to a TDIU. The Veteran presented testimony at a personal hearing at the RO in June 2008 and at a videoconference before the Board in October 2012. Transcripts are of record. The issues of entitlement to service connection for posttraumatic stress disorder (PTSD) and disorders of the bilateral hips and knees have been raised by the record and acknowledged by the Agency of Original Jurisdiction (AOJ). However, as these issues have not been adjudicated by the AOJ, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. 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 Additional development is needed before the Board can adjudicate any of the issues on appeal. VA has made unsuccessful efforts to obtain the Veteran's service treatment records from her first period of active duty. The most recent request to the National Personnel Records Center (NPRC) in September 2008 sought a negative reply if the requested service treatment records could not be obtained. No such reply was received in regards to the Veteran's first period of active duty service. 38 C.F.R. § 3.159 (c) (2) stipulates that VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency and that VA will end such efforts only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Given the foregoing, another request to obtain the Veteran's service treatment records from her first period of active duty must be made. It appears that there may be outstanding VA treatment records. Records obtained from the Social Security Administration (SSA) include some records from the South Texas Veterans Health Care System that were not obtained by VA. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). On remand, the Veteran's records from the South Texas Veterans Health Care System dated prior to March 2005 must be obtained. Recent VA treatment records should also be requested. The Veteran testified in October 2012 that she received treatment for her back from Dr. P. and another doctor whose name she could not recall at Alamo City Medical Group. On remand, VA should make efforts to obtain the Veteran's complete treatment records from Alamo City Medical Group. The Veteran underwent a VA joints examination in November 2006 and a VA spine examination in January 2009. The opinion provided by the November 2006 VA examiner was based in part on the examiner's determination that the Veteran's assertions of left shoulder problems following her discharge from service were false apparently because, in addition to a lack of treatment for the left shoulder between 1976 and 2004, there were numerous treatment records pertaining to her right shoulder during those years, and those records reflect that she never mentioned the left, and sometimes the left shoulder was examined and normal findings were recorded. Nevertheless, there was a specific diagnosis in service, i.e., capsulitis, bicipital tendonitis, and there have been some recent diagnoses as well, i.e., impingement syndrome with surgical decompression from a November 2006 examiner and the impression of an October 2006 Lackland Air Force Base examiner of "likely bicipital tendon pathology". Given the diagnosis in service and the recent diagnoses pertaining to a left shoulder disorder, the Board finds that clarification of the November 2006 examiner's opinion is necessary. In addition, the opinion provided by the January 2009 VA examiner was also problematic in that it was based, in part, on the lack of documentation of a back problem in service. The Board notes that the Veteran is competent to report in-service problems with her back. The Board also notes that the Veteran has reported two instances of back trouble during her first period of active duty service, and that the records from this period of service are not available but are again being requested. On remand, new examinations should be scheduled to obtain more adequate opinions regarding the etiology of the Veteran's current left shoulder and low back disorders. The claim for entitlement to a TDIU is inextricably intertwined with the claims for service connection currently on appeal, as well as the ones being referred to the AOJ. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1990) (issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless all are adjudicated). In addition, the Board finds that an appropriate VA examination should be scheduled in conjunction with this claim. The Veteran is hereby notified that it is her responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's service treatment records from her first period of active duty service (August 1968 to September 1973). If the requested records cannot be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile, in accordance with 38 C.F.R. § 3.159 (c) (2). 2. Obtain the Veteran's records from the South Texas Veterans Health Care System dated prior to March 2005 and since February 2009. 3. Request that the Veteran authorize the release of relevant records from Dr. P. at Alamo City Medical Group; if authorized, request these records and associate them with the claim file. 4. Schedule the Veteran for an appropriate VA examination in conjunction with her claim for service connection for a left shoulder disorder. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. All indicated studies should be conducted and the examiner should review the results of any testing prior to completion of the report The examiner must identify all current left shoulder disorders and should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any current or previously diagnosed left shoulder disorder, to include the October 2006 impression of "likely bicipital tendon pathology" and the November 2006 VA examiner's diagnosis of left shoulder impingement syndrome (subjective) with surgical decompression, had its onset during active service or is related to any in-service disease, to include the June 1975 impression of left shoulder capsulitis, probable bicipital tendonitis, event, or injury, to include as a result of the Veteran's work as a medic and her report of having to lift heavy patients as part of her duties. The examiner must also specifically address the Veteran's report of continuous problems with her left shoulder since service, which she is competent to report. The examiner must provide a comprehensive report, including complete rationale for all opinions and conclusions reached. 5. Schedule the Veteran for an appropriate VA examination in conjunction with her claim for service connection for a low back disorder. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. All indicated studies should be conducted and the examiner should review the results of any testing prior to completion of the report The examiner must identify all current low back disorders and should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any current low back disorder had its onset during active service or is related to any in-service disease, event, or injury, to include as a result of the Veteran's work as a medic and her report of having to lift heavy patients as part of her duties. The examiner must also specifically address the Veteran's report of continuous problems with her low back since service, which she is competent to report. The examiner must provide a comprehensive report, including complete rationale for all opinions and conclusions reached. 6. After readjudicating the claims for service connection for disorders of the left shoulder and back and the referred claims for service connection for PTSD and disorders of the bilateral hips and knees, schedule the Veteran for an appropriate VA examination in conjunction with her claim for a TDIU. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated studies should be performed. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities (arthritis and impingement syndrome of the right shoulder and total hysterectomy), as well as any disabilities service-connected after the issuance of this remand, either singly or taken together, render her unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. 7. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 8. Finally, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and her representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. 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 or by the U.S. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).