Citation Nr: 1312744 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 11-16 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a left arm disability. 2. Entitlement to service connection for a left wrist disability. 3. Entitlement to service connection for a left finger/hand disability. 4. Entitlement to service connection for a neck disability. 5. Entitlement to service connection for a right arm disability, to include as secondary to a neck disability. 6. Entitlement to service connection for a right wrist disability, to include as secondary to a neck disability. 7. Entitlement to service connection for a right hand/finger disability, to include as secondary to a neck disability. 8. Entitlement to service connection for a right shoulder disability, to include as secondary to a neck disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from December 1950 to September 1954. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from December 2010 and May 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. A hearing was held in August 2012 before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing testimony is in the file. At the August 2012 hearing, the Veteran submitted additional evidence to the Board which was accompanied by a waiver of RO consideration. 38 C.F.R. §§ 19.9, 20.1304(c) (2012). Characterization of issues on appeal Throughout the pendency of the appeal, the Veteran's claims to establish service connection for disabilities of the right wrist, arm and hand/fingers have been developed and adjudicated under the theory of direct service connection. However, at the August 2012 hearing, the Veteran asserted that these disabilities may also be secondary to his alleged neck disability. See the August 2012 hearing transcript at page 2. In light of above, these claims have been recharacterized as stated on the title page, and the Board will consider them under the theories of direct and secondary service connection. Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); Bradford v. Nicholson, 20 Vet. App. 200, 206 (2006). Since these claims are being remanded for further development, as will be discussed below, the Veteran is not prejudiced by the Board's actions in this regard. Bernard v. Brown, 4 Vet. App. 384 (1993). 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 issues of (1) entitlement to service connection for a neck disability, (2) entitlement to service connection for a right arm disability, to include as secondary to a neck disability, (3) entitlement to service connection for a right wrist disability, to include as secondary to a neck disability, (4) entitlement to service connection for a right hand/finger disability, to include as secondary to a neck disability, and (5) entitlement to service connection for a right shoulder disability, to include as secondary to a neck disability, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT By way of March 2013 written correspondence from the Veteran, prior to promulgation of a decision, the Veteran withdrew his appeal as to the issue of entitlement to service connection for (1) a left arm disability, (2) a left wrist disability, and (3) a left finger/hand disability. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal by the Veteran as to the issues of entitlement to service connection for (1) a left arm disability, (2) a left wrist disability, and (3) a left finger/hand disability, have been met. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2012). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c) (2012) (as amended by 68 Fed. Reg. 13,235 (April 18, 2003)). By correspondence from the Veteran dated in March 2013, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw several enumerated issues on appeal. The Board finds that the criteria have been met for withdrawal of the Veteran's appeal as to the issues of entitlement to service connection for (1) a left arm disability, (2) a left wrist disability, and (3) a left finger/hand disability. Accordingly, there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal regarding those issues, and it is dismissed. ORDER The appeal as to entitlement to service connection for a left arm disability is dismissed. The appeal as to entitlement to service connection for a left wrist disability is dismissed. The appeal as to entitlement to service connection for a left finger/hand disability is dismissed. REMAND The Veteran stated that he initially injured his neck and right shoulder during his service when he slipped and fell off of the wing of an airplane that he was inspecting. Also, the Veteran claims that his current disabilities of the right shoulder, arm, wrist, and hand/fingers are secondary to his neck disability. To that extent, his claims regarding his right upper extremity are inextricably intertwined with his claim to establish service connection for a neck disability. Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The Veteran's DD Form 214 reflects that he worked in aircraft maintenance while in the Air Force, and thus, while his in-service neck and right shoulder injuries are not reflected in his service treatment records, his accounts of such are congruent with the duties of his military occupational specialty. The Veteran's post-service medical records reflect VA and private treatment for neck and right shoulder pain which radiates throughout his right upper extremity. A April 2006 bone imaging test showed increased activity in the Veteran's neck, and right upper extremity, to include the shoulder, wrist and elbow, which was most likely due to degenerative and/or posttraumatic change. In light of the evidence of an in-service injury to the Veteran's neck and right shoulder as well as post-service medical evidence of posttraumatic and/or degenerative changes in the Veteran's neck and right upper extremity, the Board concludes that the Veteran should be provided a VA examination to determine the nature and etiology of the alleged disabilities. This is especially important considering that the Veteran has not previously been provided a VA examination in conjunction with these claims. McLendon v. Nicholson, 20 Vet. App. at 83. Further, the Board notes that a complete copy of the Veteran's service treatment records is not associated with the record. It appears that portions of the Veteran's service treatment records were destroyed in the fire at the National Personnel Records Center (NPRC). While the record reflects that the RO has made several unsuccessful attempts to obtain a complete copy of these records, a formal finding of unavailability has not been produced. On remand, the RO/AMC should attempt to obtain a complete copy of the Veteran's service treatment records, and if efforts to do so are futile, produce a formal finding of unavailability of the Veteran's complete service treatment records, and notify the Veteran of such. Further, since these claims must be remanded for other matters, the Board finds that the RO/AMC should request that the Veteran identify any and all outstanding treatment records (VA and private) which may be pertinent to his claims. Accordingly, the case is REMANDED for the following action: (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. Obtain and associate with the record the Veteran's complete service treatment records. All actions to obtain the requested records should be documented fully in the claims file. Because these are federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain these records would be futile. If they cannot be located or no such records exist, a memorandum of unavailability outlining all actions to obtain the records should be prepared. The claimant should also be notified in writing that these records do not exist. 2. Obtain copies of all VA treatment records from the VA Medical Center in Lincoln, Nebraska, dated from December 27, 2011, to the present. Document all attempts to secure this evidence in the claims file. If, after making reasonable efforts to obtain named records the RO is unable to secure same, notify the Veteran and (a) identify the specific unavailable records; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. Give the Veteran an opportunity to respond. 3. Request that the Veteran identify any and all private treatment records pertaining to his claimed disabilities of neck and right upper extremity. After obtaining authorization(s) from the Veteran, obtain copies of all identified treatment records and associate them with the claims file. If any private treatment records are identified the RO/AMC must make two attempts to obtain the relevant private treatment records, or make a formal finding that further attempts would be futile. If no records are obtained, the RO/AMC must (1) notify the Veteran of the records that were sought, (2) inform him of the efforts made to obtain them, and (3) inform him that the claim will be rated on the evidence of record but that he is not prohibited from submitting records at a later date if such submission is otherwise allowed. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All attempts to obtain the records should be documented in the claims file. 4. Thereafter, schedule the Veteran for an examination to determine the current nature and etiology of any identified disability of the neck, right shoulder, right arm, right wrist, and/or right hand/fingers. The complete record, to include a copy of this remand, must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished, to include x-ray testing. Based on a review of the complete record and the results of his physical examination and any completed testing, the examiner is asked address the following: a. Identify any current neck disability(s). b. For each disability identified in part (a), provide an opinion as to whether the disability is at least as likely as not (i.e., a 50 percent or greater probability) related to active service or any incident of service. c. Identify any current disability(s) of the Veteran's right shoulder, right arm, right wrist and/or right hand/fingers. d. For each disability identified in part (c), opine whether such is at least as likely as not (i.e., a 50 percent or greater probability) related to active service or any incident of service. e. IF service connection for a neck disability is established, for each disability identified in part (c), opine whether such is at least as likely as not (i.e., a 50 percent or greater probability) caused by the Veteran's neck disability. f. IF service connection for a neck disability is established, for each disability identified in part (c), opine whether such is at least as likely as not (i.e., a 50 percent or greater probability) aggravated by the Veteran's neck disability. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. A complete rationale must be provided for any opinions expressed. 5. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 6. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs