Citation Nr: 1316433 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 11-05 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from October 1946 to April 1948. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in St. Petersburg, Florida. In April 2013, the Veteran testified at a Travel Board hearing at the RO in St. Petersburg, Florida before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. 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 RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran served on active duty from October 1946 to April 1948. He claims that he has a left shoulder disability and left ear hearing loss as a result of an in-service motor vehicle accident around September or October 1947. He testified that he worked in the 361st Station Hospital in service (in Tokyo, Japan), and that he was treated there for his injuries. As an initial matter, the Board acknowledges that the RO requested copies of the Veteran's service treatment records from NPRC, which replied in April 2009 that they are fire-related. Even so, the Board notes that the Veteran's October 1946 enlistment examination report is in the claims file, as well as a dental record. Also, the RO followed up with a request to NPRC for any relevant sick reports, and a September 1947 sick report is also in the claims file reflecting that the Veteran was injured in the line of duty on September 12, 1947, and was released back to duty on September 16, 1947. No other information, such as the nature of the illness, is noted in the report. The Veteran completed a Form 13055, in which he again noted that he had been treated at the 361st Station Hospital in Tokyo, Japan. There is no record, however, of the RO ever requesting copies of any inpatient records or other hospital records that may be outstanding. Therefore, the Board finds that a remand is necessary so that any outstanding treatment records from the 361st Station Hospital in Tokyo, Japan dated in September 1947 or October 1947 may be associated with the claims file. At the Board hearing, the Veteran noted that he had been treated by a Dr. R. in December 2012 for his left shoulder condition, as well as by a Dr. C.A. in 2009. In that regard, the Board notes that the claims file includes private treatment records from Dr. C.A. dated in December 2009 (in response to a request by the RO for any relevant records), and also it includes a December 2012 record from Dr. R. The December 2012 record from Dr. R., however, reflects that a recheck of the Veteran's left shoulder condition was performed, and that it essentially remained unchanged, thereby indicating that there are prior, outstanding treatment records. Therefore, the Board finds that a remand is also necessary to obtain any outstanding private treatment records from Dr. R. and associate them with the claims file. With regard to the Veteran's left shoulder claim, the Board notes that the recent December 2009 treatment records from Dr. C.A. reflect that a diagnosis of severe left shoulder osteoarthrosis was recorded, and Dr. C.A. opined that the Veteran had really advanced degenerative changes of the left glenohumeral joint consistent with posttraumatic arthritis from his reported jeep accident in service. Similarly, the December 2012 record from Dr. R. reflects that he recorded a diagnosis of osteoarthrosis of the left shoulder, and opined that "this problem may be related to his original Jeep accident that he had in the military, but it's hard to say." The Veteran has not been provided with a VA examination relating to his left shoulder claim. In light of the above evidence of a current diagnosis of left shoulder osteoarthrosis, as well as the etiological opinions of Drs. R. and C.A., although they may be somewhat speculative and based on a history by the Veteran, nevertheless, the "low threshold" requirement for a VA examination has been met and, therefore, that his claim must also be remanded to provide him with a VA examination relating to his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Likewise, the Veteran has not been provided with a VA examination relating to his left ear hearing loss claim. While the Board acknowledges that there is no medical evidence in the claims file of any ear injury or hearing loss, nevertheless, the Board acknowledges that the Veteran is competent to have testified at the Board hearing that he experienced hearing loss in service after the motor vehicle accident, and to have also experienced hearing loss since his 50s, thereby meeting the "low threshold" requirement for a VA examination and, therefore, a remand is required to provide him with a VA examination relating to his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, a March 2013 VA medical record indicates that the Veteran is to be scheduled for a MRI of the left shoulder. Accordingly, any additional VA treatment records, including MRI results should be associated with the record on remand. Accordingly, the case is REMANDED for the following action: (Please note, 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 VA treatment records that are not already of record including the results of any MRI test with regard to the left shoulder in March/April 2013. 2. Request from all appropriate sources copies of any inpatient service treatment records pertaining to treatment of the Veteran at the 361st Station Hospital in Tokyo, Japan from September 1947 to October 1947. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. 3. Obtain copies of any outstanding relevant treatment records from Dr. Routman relating to the Veteran's left shoulder claim (note the December 2012 record indicates prior treatment). Also provide the Veteran with an opportunity to identify any other outstanding private treatment records relating to his claim. To that end, provide the Veteran with Forms 21-4142 for his authorization to obtain the records. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. After all of the above development has been completed, schedule the Veteran for a VA examination to determine the current nature and the etiology of any left shoulder disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner should indicate whether it is at least as likely as not (meaning likelihood of at least 50%) that any current left shoulder disability, including arthritis, is related to the Veteran's service, including the alleged motor vehicle accident in September or October 1947. For the purpose of this opinion, the examiner should assume that the accident occurred. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. As to any opinions expressed, it would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 5. After the development in paragraphs (1) and (2) has been completed, schedule the Veteran for a VA audiological examination to determine the current nature and the etiology of any left ear hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner should indicate whether it is at least as likely as not (meaning likelihood of at least 50%) that any current left ear hearing loss is related to the Veteran's service, including the alleged motor vehicle accident in September or October 1947. For the purpose of this opinion, the examiner should assume that the accident occurred. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. Then, readjudicate the Veteran's claims. If his claims remain denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The appellant 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). _________________________________________________ S.S. TOTH 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).