Citation Nr: 1316169 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 06-28 017A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right shoulder injury. 2. Entitlement to service connection for a neck injury. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from August 1953 to August 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before the undersigned at a Travel Board hearing in March 2008. A transcript of this hearing is associated with the claims folder. In a March 2009 decision, the Board denied the Veteran's claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2009 Order, the Court vacated and remanded the Board's March 2009 decision and implemented the provisions of an October 2009 Joint Motion for Partial Vacatur and Remand (Joint Motion). In March 2010 and August 2011, the Board remanded the claims for additional development. Please note 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 appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, another remand is required in this case. While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2012). A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In its August 2011 remand, the Board instructed in part that sick or morning reports related to the Veteran from August 1953 to March 1959 should be requested from the National Personnel Records Center (NPRC). After the AMC was informed by NPRC that the Veteran's specific unit was required, this information was requested from the Veteran. The Veteran responded to the inquiry in August 2012 and detailed his unit assignments during service. The AMC then made several requests for sick or morning reports; however, these requests did not cover all of the relevant units during the relevant times. For example, the Veteran reported serving in Headquarters Battery, 52nd Field Artillery while in Korea. No reports were requested from this unit. It is important to note that when service records are unavailable VA has a heightened obligation to assist the Veteran in the development of his claims. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In this case additional requests for sick or morning reports are required. The specifics of the required requests are detailed below. The Veteran should also be afforded a VA examination. The Veteran has put forth several theories regarding the etiology of his current right shoulder and neck complaints. In April 2006, the Veteran reported that he was in an automobile accident while on duty in Oklahoma and suffered right shoulder and neck injuries. He stated that he was incarcerated for 10 days and reported having problems with the injuries for some time. Service records show that the Veteran was incarcerated in Oklahoma for 10 days in August 1958 after conviction for drunken driving. In June 2006, the Veteran reported that an infection in the left side of his face in September 1958 caused nerve damage to the right shoulder and right side of the neck. In a January 2007 statement he clarified that in September 1958 he was brought to an Army Hospital in Ft. Sill with a high temperature, and after a stay in intensive care was told he had a gum infection. He reports that ever since he has had problems with his head, neck, ears, eyes, and shoulders. A Surgeon General's Office report reflects that the Veteran was hospitalized in Ft. Sill, Oklahoma in September 1958 for "Cellulitis, oral strictures" and "Other disorders of occlusion, eruption and tooth development." The Veteran also testified that during service he did a lot of repetitive movement with his right shoulder and neck, and that he tripped over a duffel bag hitting his shoulder and neck on a wall. Board Hearing Tr. at 4. There is medical evidence of right shoulder complaints during service but no medical evidence of neck complaints during service. Most of the Veteran's service records were destroyed in an accidental fire in 1973. The available records reflect that evaluation of the neck, spine, and upper extremities was normal at the Veteran's March 1959 relief from active duty examination. Two days later, when the Veteran separated from service, he noted that there was no change in his physical condition since his examination except for a sharp pain in his right shoulder. There is also medical evidence of current right shoulder and neck disabilities or symptoms of disabilities. For example, during an appointment with a VA physician's assistant in May 2004 the Veteran complained of right shoulder and neck pain. Stable cervical arthrosis was assessed in December 2004. Finally, there is evidence of right shoulder and neck complaints beginning during service and continuing to the present. In an April 2008 statement, the Veteran's first wife, who was married to the Veteran from 1958 to 1967, relayed that before and after their marriage he complained of pain in his right shoulder and the right side of his neck. According to the Veteran, he has continued to have problems with his right shoulder and neck since his discharge. Board Hearing Tr. at 6, 9. In addition, post-service treatment records reflect that during VA treatment in March 1974, the Veteran reported having pain in his right arm and shoulder for about 17 years. Given the above, the Board finds that VA's duty to provide a VA examination and obtain a medical opinion has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (stipulating that VA's duty to assist veterans, pursuant to the Veterans Claims Assistance Act of 2000, includes the duty to obtain a medical examination and/or opinion when necessary to make a decision on a claim). It is noted that the Veteran's report of the onset of neck pain have varied. For example, in May 2004 the Veteran told a VA practitioner that his neck pain started in 1983. During an October 1981 VA X-ray of the cervical spine, the Veteran complained of a several year history of neck pain mostly on the right. The X-ray suggested a compression fracture involving the C5 vertebral body which was thought to be old. These reports conflict with his statements that he has had neck pain since service. However, for purposes of offering a medical opinion the examiner is asked to accept as fact that the Veteran has had neck pain since service. Other specific instructions to the examiner are detailed below. Since the Board has determined that a VA examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) (2012) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 (2012) address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination scheduled in conjunction with an original claim, the claim will be decided based on the evidence of record. 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). Expedited handling is requested.) 1. Request from the appropriate source any sick or morning reports for the following time periods, using the identified units. (a) Battery B, 36th Field Artillery - August 26, 1953 through December 31, 1955 (b) Battery B, 6th Armored Field Artillery - August 26, 1953 through December 31, 1955 (c) Headquarters Battery, 52nd Field Artillery - January 1, 1955 through December 31, 1956 (d) Battery B, 37th Anti-Aircraft Battalion - January 1, 1956 through December 31, 1958 (e) Headquarters Battery, 65th Anti-Aircraft Battalion - January 1, 1956 through December 31, 1958 (f) Battery B, 13th Field Artillery - January 1, 1958 through March 20, 1959 All requests and responses should be associated with the Veteran's claims file. 2. After the above has been accomplished to the extent possible, schedule the Veteran for a VA orthopedic examination to determine the nature of any right shoulder or neck disability, and to obtain an opinion as to whether such is possibly related to service. The entire claims file (both the paper file and any electronic portion of the file) must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner is asked to address the following. (a.) Is it as least as likely as not (50 percent or greater probability) that the Veteran has a current right shoulder disability or a neck disability as a result of his military service? (b.) For each current right shoulder or neck disability related to military service, please address if it is at least as likely as not a result of: 1. An automobile accident during service, 2. "Cellulitis, oral strictures" and "Other disorders of occlusion, eruption and tooth development" diagnosed during hospitalization in September 1958, 3. Repetitive movement of his right shoulder and neck while performing duties as an artilleryman, or 4. Hitting his shoulder and neck on a wall after tripping. For purposes of the opinion, the examiner should accept as fact that during service the Veteran was in an automobile accident, did repetitive movements with his right shoulder and neck, and hit his right shoulder and neck on a wall after tripping, as well as the lay reports that he has had at least intermittent right shoulder and neck pain since service. A rationale for all opinions expressed should be provided. 3. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ Laura H. Eskenazi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).