Citation Nr: 1318445 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 11-33 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Jewish War Veterans of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from May 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a hearing in May 2013 before the undersigned. A copy of the transcript 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 While the Board regrets the further delay that a remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. Some of the Veteran's service treatment records (STRs) are presumed destroyed in the St. Louis fire in 1973. Where STRs have been destroyed or are unavailable, VA has a heightened duty to assist the Veteran and the Board has a heightened duty to provide and explanation of reasons or bases for its findings. See O'Hare vs. Derwinski, 1 Vet. App. 365 (1991). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of the individual case. Littke v. Derwinski, 1 Vet. App. 90 (1990). "Full compliance with the [statutory duty to assist] also includes VA assistance in obtaining relevant records from private physicians when [the Veteran] has provided concrete data as to time, place, and identity." Olson v. Principi, 3 Vet. App. 480, 483 (1992). At his May 2013 hearing, the Veteran testified that he injured his shoulder in 1943 when he was training to use a grenade launcher. He stated that he was laying on an incline and the recoil from the weapon was so strong that it knocked him down the hill. He stated that he was taken to a hospital and treated for a right shoulder injury. He remembered that his arm was "strapped up" but could not remember whether x-rays were taken. After his injury, he stated that he continued to have pain in his right arm and back. He stated that during service, he went to sick call for medication and massage. He testified that the injury occurred so many decades ago that it was difficult for him to remember all the details. The Veteran is competent to report observable symptoms such as shoulder pain. Layno v. Brown, 6 Vet. App. 465 (1994). The Board notes that at a September 1950 VA special orthopedic examination, the Veteran reported a similar injury on a weapons range in 1943. The Veteran's testimony regarding his injury and subsequent pain are credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran has competently and credibly asserted that he was injured on a weapons range in 1943 and that he received treatment for the injury during service. Further, his STRs are partially incomplete. Because the VA's duty to assist is heightened in such cases, and the threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is low, the requirement to provide a VA examination is triggered. Id., at 83. In a March 2011 statement, the Veteran asserted that he had received unspecified disability payments for his right shoulder "prior to WWII in 1943," but that the payments ceased when he began his period of active service. However, there is no indication that the Veteran was in receipt of such payments from VA prior to active service, and his May 1943 enlistment examination shows no disabilities of the right shoulder. Lastly, the Veteran testified that he received treatment at the VA Medical Center (VAMC) in Providence, Rhode Island. The record contains treatment records from the VAMC in Providence for December 2010 only. Where VA has constructive and actual knowledge of the availability of pertinent records in the possession of the VA, an attempt to obtain them must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, the RO must obtain all outstanding VA treatment records. 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. Attempt to obtain any outstanding VA treatment records that may exist, including any records from the VAMC in Providence, Rhode Island. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2012). The notice must contain the following information: (1) the identity of the records that could not be obtained, (2) an explanation of efforts made to obtain the records, (3) a description of any further action that will be taken including notice that VA will decide the claim based upon evidence of record unless the Veteran submits records that VA was unable to obtain and (4) notice that the Veteran is ultimately responsible for providing the evidence. 2. Schedule the Veteran for an examination with an appropriate clinician. The purpose of the examination is to determine whether the Veteran has a right shoulder disability that had its onset during active service; or, if arthritis is diagnosed, manifested to a compensable degree within one year of active service. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. c) After reviewing the record, examining the Veteran, and identifying all appropriate symptoms and diagnoses, the examiner must provide medical findings or opinions responsive to each of the following questions: i) On the basis of the clinical record, is it at least as likely as not that the Veteran's current right shoulder disability had its onset during active military service, including as the result of a weapons range injury sustained in 1943? ii) If arthritis of the right shoulder is diagnosed, is it at least as likely as not that it had its onset within one year of the Veteran's separation from service in December 1945? d) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. e) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. A complete explanation for such a finding must be provided. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. L. Kennedy 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).