Citation Nr: 1310041 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-00 200A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for papillary thyroid carcinoma. 2. Entitlement to service connection for loss of the parathyroid, to include as secondary to papillary thyroid carcinoma. 3. Entitlement to service connection for cancer of the lymph nodes, to include as secondary to papillary thyroid carcinoma. 4. Entitlement to service connection for loss of use of the right arm, to include as secondary to papillary thyroid carcinoma and/or cancer of the lymph nodes. 5. Entitlement to service connection for removal of the jugular vein, to include as secondary to papillary thyroid carcinoma and/or cancer of the lymph nodes. 6. Entitlement to service connection for loss of shoulder nerves, to include as secondary to papillary thyroid carcinoma and/or cancer of the lymph nodes. 7. Entitlement to service connection for soft tissue sarcoma. REPRESENTATION Appellant represented by: William J. La Croix, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to September 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which, in pertinent part, found that new and material evidence had not been submitted sufficient to reopen a claim for service connection for thyroid carcinoma, and denied service connection for soft tissue sarcoma, loss of the parathyroid, cancer of the lymph nodes, loss of use of the right arm, removal of the jugular vein, and loss of shoulder nerves. In December 2011, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing. A transcript of that hearing is of record. In May 2012, the Board determined that there was new and material evidence sufficient to reopen the claim of entitlement to service connection for papillary thyroid carcinoma, and remanded all of the issues on appeal for additional development. The file has now been returned to the Board for further consideration. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). The most recent VA treatment records associated with the claims file, considering Virtual VA and the physical claims file, are dated in October 2012. There is no indication that the Veteran has ceased VA treatment. Because VA is on notice that there are additional records that may be applicable to the Veteran's claims and because these records may be of use in deciding the claims, these records are relevant and should be obtained. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Also, it has come to the Board's attention that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). During VA treatment in February 2011, he asserted such to his treatment provider. Although generally VA is not bound by that determination, it is pertinent to the claim. Murinczak v. Derwinski, 2 Vet. App. 363, 370 (1992). Because the SSA's decision and the records upon which the agency based its determination may be relevant to VA's adjudication of his pending claims, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); see also Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the Board's prior remand, it directed the AMC/RO to obtain the Veteran's outstanding treatment records from the Grand Junction VA Medical Center (VAMC), specifically, his complete records from his October 2006 hospitalization, the reports of a computed tomography (CT) scan of the neck and a thyroid ultrasound (as referenced during VA treatment in August 2006), and any treatment records dated since July 2011. The RO obtained the Veteran's complete records from his October 2006 hospitalization and his VA treatment records dated since October 2012. However, the RO did not obtain the cited reports of a CT scan of the neck and a thyroid ultrasound. A June 2012 response to the RO's request indicates that the Veteran's notes and paper chart were submitted; however, the writer of the response directed the RO to seek reports of CT scans or ultrasounds in the Radiology tab in Vista Web. The Board does not have access to Vista Web, nor is there any evidence that the VA examiner, during the August 2012 VA examination, had such access. On remand, the AMC/RO must attempt to obtain the reports of a CT scan of the neck and a thyroid ultrasound (as referenced during VA treatment in August 2006). Stegall, 11 Vet. App. 268. Related to outstanding records, the Board notes that at the time of its prior remand, it also directed the AMC/RO to request any pertinent treatment records from Presbyterian Memorial Medical Center/Presbyterian St. Luke's dated in 1976, any outstanding pertinent treatment records from Dr. V.J.K. (to include any treatment records from the San Juan Cancer Center), any private emergency room records regarding a right shoulder dislocation (as referenced during VA treatment in October 2008), and any private physical therapy records regarding the right shoulder (as referenced during VA treatment in January 2009). In June 2012, the RO provided the Veteran VA Forms 21-4142, Authorization and Consent to Release Information to VA, and requested that he submit the completed forms to allow VA to obtain his outstanding private treatment records. The RO specifically sought authorization to obtain the records cited by the Board. The Veteran's attorney, in an August 2012 letter, informed the RO that that they had attempted to obtain the Veteran's private treatment records from Presbyterian Memorial Medical Center/Presbyterian St. Luke's and were unsuccessful. The attorney reported that he asked the Veteran to submit a completed authorization. To date, no authorizations are of record. As the claims are remanded for additional development, the Veteran should be provided a final opportunity to authorize VA to attempt to obtain any relevant outstanding private treatment records. In its prior remand, the Board directed the AMC/RO to provide the Veteran a VA examination. The Board specifically requested that the physician clarify whether papillary thyroid carcinoma is a soft tissue sarcoma and, if not, clarify whether the Veteran has otherwise been diagnosed with a soft tissue sarcoma. The Board specifically requested that the examiner consider and address the January 2009 opinion of Dr. P.P. While the examiner clarified that papillary thyroid carcinoma is not a soft tissue sarcoma, and addressed the January 2009 opinion of Dr. P.P. in his August 2012 VA examination report; he did not clarify whether the Veteran has otherwise been diagnosed with a soft tissue sarcoma. On remand, the AMC/RO must obtain an addendum to the examination report that clarifies whether the Veteran has otherwise been diagnosed with a soft tissue sarcoma. Stegall, 11 Vet. App. 268. Accordingly, the case is REMANDED to the RO for the following action: 1. Obtain and associate with the claims file, either in the physical claims file or in Virtual VA, the Veteran's updated VA treatment records, dated from October 2012 to the present. Any and all responses, including negative responses, must be added to the claims file. If a negative response is received, the Veteran must be duly notified and provided an opportunity to submit such records. 2. Obtain and associate with the claims file all relevant records related to the Veteran's disability benefits claim from the SSA, to include any treatment records upon which SSA based its decision. Any and all responses, including negative responses, must be added to the claims file. If a negative response is received, the Veteran must be duly notified and provided an opportunity to submit such records. 3. Contact the Veteran and provide him VA Forms 21-4142, Authorization and Consent to Release Information to VA, in order to allow the AMC/RO to obtain any relevant outstanding private treatment records. Specifically inform the Veteran that the Board seeks records from Presbyterian Memorial Medical Center/Presbyterian St. Luke's dated in 1976, any outstanding pertinent treatment records from Dr. V.J.K. (to include any treatment records from the San Juan Cancer Center), any private emergency room records regarding a right shoulder dislocation (as referenced during VA treatment in October 2008), and any private physical therapy records regarding the right shoulder (as referenced during VA treatment in January 2009). Advise the Veteran that he may submit his private treatment records if he so chooses. Any and all responses, including negative responses, must be added to the claims file. If a negative response is received, the Veteran must be duly notified and provided an opportunity to submit such records. 4. After all available records have been associated with the claims file; forward the Veteran's claims file to the examiner who conducted the VA examination in August 2012 and request that he provide an addendum addressing any relevant newly-associated VA and private treatment records. Request that he clarify whether the Veteran has otherwise been diagnosed with a soft tissue sarcoma, as he previously opined that the Veteran's papillary thyroid carcinoma was not a soft tissue sarcoma. The claims file, to include a copy of this Remand, should be made available to the examiner for review in conjunction with the opinion, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the examiner who performed the August 2012 VA examination, or a suitable substitute, is not available, schedule the Veteran for another appropriate examination and have that examiner address the Board's inquiry. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 5. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claims, considering any additional evidence added to the record. If any action remains adverse to the Veteran, provide the Veteran and his attorney with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. 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). These claims 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. PARAKKAL 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).