Citation Nr: 1310796 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 10-41 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a right hand disability. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for arthritis of the right knee. 4. Whether new and material evidence has been submitted to reopen a claim for service connection for a lumbar spine disability. 5. Whether new and material evidence has been submitted to reopen a claim for service connection for a right ankle disability. 6. Whether new and material evidence has been submitted to reopen a claim for service connection for a right wrist disability. 7. Whether new and material evidence has been submitted to reopen a claim for service connection for the residuals of a concussion. 8. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from June 1965 to April 1969, January 2003 to June 2003, and July 2003 to May 2004. In addition, he has over 30 years of service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Houston, Texas, regional office (RO) of the Department of Veterans Affairs (VA). The Wichita, Kansas, RO now has jurisdiction of this matter. The December 2008 rating decision denied 16 claims of the Veteran. The Veteran submitted a notice of disagreement with these issues through his representative in July 2009. An August 2010 statement of the case addressed 15 of these issues. A VA Form 9 Appeal to the Board of Veterans' Appeals was received from the Veteran in October 2010. He checked the box indicating that he had read the statement of the case and was only appealing the issues listed below. The issues he listed are those numbered one through seven on the first page of this decision, and they are the only issues currently on appeal to the Board. This includes the issue of whether new and material evidence has been received to reopen a claim for service connection for a right wrist disability, which was not included on the VA Form 8 Certification of Appeal. 38 C.F.R. § 20.200 (2012). No other issues were certified to the Board, and the Veteran's representative noted in the Informal Hearing Presentation that it did not appear that the Veteran wished to appeal any issues that were not listed. However, there is evidence that the Veteran's representative disagreed with the denial of service connection for PTSD, and that issue is remanded below for issuance of a statement of the case. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has developed the claimed disabilities as a result of the over 30 years he spent on both active duty and inactive duty in the Marine Corps and the Army National Guard. In particular, he notes that he qualified as a parachutist in the Army National Guard and made over 30 jumps. He further notes that he sustained injuries in a June 1977 jump that required medical treatment at a private hospital. The Veteran contends that he now has arthritis of his back, neck, and many of his joints as well as the residuals of a concussion that are the result of either the June 1977 injury or the accumulated wear and tear of his many parachute jumps. Service connection may be granted for disability resulting from disease or injury incurred during active duty for training (ADT), or injuries suffered during inactive duty training (IDT) to include when a cardiac arrest or a cerebrovascular accident occurs during such training. See 38 U.S.C.A. §§ 101(24), 106 (West 2002 & Supp. 2012). Reserve and National Guard service generally means ADT and IDT. ADT is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22) (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(c) (2012). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," that each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. IDT includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23) (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(c) (2012). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. Active military service includes active duty, any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of IDT during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 1106 (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(a) (2012). A review of the record shows the Veteran first submitted some of his service treatment records from his National Guard service in June 2004. This included records from his periods of active duty in 2003 and 2004. He submitted many additional service treatment records in September 2004. Both sets of records were submitted prior to the consideration of the Veteran's initial claim in August 2005. It does not appear that VA has ever requested all of the Veteran's service treatment records, and it is unclear if the records submitted by the Veteran are complete. For instance, these records do not contain an entrance examination for the periods of active duty in 2003 and 2004. While it is unknown if such an examination was conducted, the Board finds that as the record raises potential questions regarding the presumption of soundness for these periods as well as the aggravation of pre-existing disabilities, an attempt must be made to obtain copies of the service treatment records through official channels in order to ensure completeness. At this juncture, the Board acknowledges that there is a limited duty to assist a Veteran in an attempt to reopen a claim on the basis of new and material evidence. However, this limited duty includes obtaining all records potentially in the custody of a Federal Department or agency. Similarly, while some of the Veteran's personnel records for his service in the National Guard have been obtained, the remainder of these records must also be obtained through official channels in order to ensure completeness. For example, the Veteran has submitted copies of a June 1977 Statement of Medical Examination and Duty Status that shows he sustained an injury to his lower back in a parachute jump. The form states that the injury was incurred in the line of duty. However, there is no confirmation as to whether or not the Veteran was on ADT or IDT in June 1977. Therefore, all personnel records must be obtained, and dates of all periods of ADT and IDT should be compiled. Regarding the June 1977 Statement of Medical Examination and Duty Status, the record reflects that the Veteran was treated and released at St. Edward's Mercy Hospital in Ft. Smith, Arkansas. The records of this treatment are not in the claims folder. When contacted about this previously, the Veteran expressed the belief that the records were already in his Army records. Given that the Veteran contends that he sustained injuries to his head and neck in addition to the low back at this time, the Board finds that an attempt to obtain these records must be made if they are not included in any of the additional service treatment records from the National Guard that may be received from official sources. The Veteran has not been afforded a VA examination of his claimed cervical spine and right hand disabilities. The Veteran is competent to state that he injured his neck at the time of his June 1977 accident. Furthermore, service treatment records from 2004 show that he was seen for complaints pertaining to the neck and right hand during the final period of active duty. He has current diagnoses of arthritis of both the cervical spine and the right hand. However, there is some indication that the Veteran received treatment for each of these disabilities before his final period of active duty. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. Therefore, as the Veteran has evidence of current disabilities of the cervical spine and right hand, as the record further indicates that they may be associated with active duty, and as the record does not contain sufficient information to make a decision on the claim, the Board finds that the Veteran should be scheduled for a VA examination in order to determine the nature and etiology of his claimed disabilities of the cervical spine and right hand. Finally, entitlement to service connection for PTSD was among the claims denied in the December 2008 rating decision on appeal. While this issue was not included in the Veteran's July 2009 notice of disagreement written by the Veteran, it was included in the cover letter from the Veteran's representative and associated with the Veteran's statement. It is unclear whether the representative intended to appeal the PTSD decision, and it was not included in the August 2010 statement of the case. Given the Board's duty to liberally construe a Veteran's pleadings, the Board finds that a statement of the case is required with regard to the issue of entitlement to service connection for PTSD. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's available service treatment and personnel records. This should include all records from his National Guard service, and periods of active duty. Potential sources of these records may include the National Personnel Records Center; the U.S. Army Human Resources Command; and the Adjutant General of Texas. Efforts to obtain the records should continue until they are obtained, unless it is reasonably certain that they do not exist of that further efforts would be futile. If any requested records cannot be obtained, the Veteran should be informed, and told of the efforts to obtain the records and any further actions that will be taken with regard to his claims. 2. Verify the dates of the Veteran's active service, ACDUTRA and IDT. 3. If the additional records received do not include records of the Veteran's June 1977 treatment from St. Edward's Mercy Hospital in Ft. Smith, Arkansas, the Veteran should be asked to authorize VA to obtain these records. He should also be notified that he can obtain and submit these records on his own. If any requested records cannot be obtained, the Veteran should be informed, and told of the efforts to obtain the records and any further actions that will be taken with regard to his claims. 4. After all available records have been received, schedule the Veteran for a VA to determine whether he has any current disabilities of the cervical spine or right hand that are related to a disease or injury in service. The examiners claims folder must be provided to the examiner(s) for use in the study of this case. All indicated tests and studies should be conducted. After completion of the examination and review of the record, the examiner(s) should answer the following questions: a) Does the Veteran have a current chronic disability of the cervical spine, or has he had a disability at any time since he initiated his appeal? If so, what is the diagnosis or diagnoses? b) For each disability of the cervical spine (i.e. a disability shown at any time since he filed his claim for service connection), is it as likely as not that it was a result of the June 1977 parachute jump accident? If not, was it as likely as not incurred due to the accumulated effect of the Veteran's many parachute jumps? If not, was it as likely as not incurred due to active service or active duty for training, or due to an injury sustained during inactive duty for training? c) Does the Veteran have a current disability of the right hand (i.e. a disability shown at any time since he filed his claim for service connection), or has he had a disability at any time since he initiated his appeal? If so, what is the diagnosis or diagnoses? d) For each disability of the right hand that is diagnosed, is it as likely as not that it was incurred due to the June 1977 parachute jump accident? If not, was it as likely as not incurred due to the accumulated effect of the Veteran's many parachute jumps? If not, was it as likely as not incurred due to active service or active duty for training, or due to an injury sustained during inactive duty for training? The reasons and bases for all opinions should be provided. If the examiner finds that they are unable to provide the requested opinions without resorting to speculation, the reasons and bases for that conclusion should be provided, and any missing evidence required to provide the requested opinions should be identified. 5. If is found that new and material evidence has been submitted to reopen one or more of the Veteran's previously denied claims, consider whether a VA examination or opinion is required. 6. Issue a statement of the case for the issue of entitlement to service connection for post-traumatic stress disorder. This issue should not be certified or returned to the Board unless a timely substantive appeal is received. 7. If any benefit, for which an appeal has been perfected, remains denied, issue a supplemental statement of the case; then return the case to the Board, if otherwise in order. The Veteran 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). _________________________________________________ Mark D. Hindin 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).