Citation Nr: 1320514 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-47 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for depression. 2. Entitlement to service connection for left elbow disorder (claimed as triceps tendonitis and left elbow pain). 3. Entitlement to service connection for right shoulder disorder (claimed as right shoulder subluxation). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2001 to December 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2008, the RO denied, in pertinent part, service connection for depression and right shoulder subluxation, and in July 2008 denied service connection for triceps tendonitis. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A remand is required in this case to ensure there is a complete record upon which to decide the issues on appeal. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). One month following separation from service, the Veteran submitted a January 2008 Application for Compensation and/or Pension Benefits, via a VA Form 21-526, seeking service connection, in pertinent part, for depression and right shoulder disorder. Pursuant to these claims, the Veteran was afforded a VA examination through QTC Medical Services in May 2008. The Veteran reported the onset of depression, left elbow, and right shoulder disorder during service, and following the clinical evaluations was diagnosed with major depressive disorder, single episode without psychotic features, left triceps tendonitis, and right labral tear. No medical opinions were rendered regarding whether these post-service diagnoses were incurred in or related to military service, to include the Veteran's assertions of symptoms therein. The Board notes that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In light of this regulatory criteria and proximity of the May 2008 VA QTC examinations to separation from service in December 2007, the Board finds that VA medical opinions are necessary to ensure there is a complete record upon which to decide these claims on appeal. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App 120 (2007). On of the key issues is whether the Veteran current has these problems and whether they are related to his service from January 2001 to December 2007. Furthermore, in an August 2008 statement, via a VA Form 21-4138, the Veteran identified outstanding treatment for the right shoulder from the VA Medical Center (VAMC) in Houston, Texas from July 21, 2008 to July 22, 2008, until October 2008 for recooperation, and six months for occupational therapy. Review of the evidentiary record only includes medical evidence from a January 2008 VA outpatient treatment session for evaluation of right shoulder discomfort and May 2008 VA QTC examinations, as discussed above. Since VA records are considered part of the record on appeal, they are within VA's constructive possession and must be considered in deciding this issue on appeal. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record all outstanding VA outpatient treatment records, to include from the Houston VAMC, from January 2008 to the present. The facility must provide a negative response if records are not available and the Veteran and his representative should be informed of such and given the opportunity to submit the requested information as required under 38 U.S.C.A. § 5103A(c) and 38 C.F.R. § 3.159(c). 2. Next, furnish the Veteran's entire claims file to the appropriate VA physician(s) to determine whether there is a nexus between the Veteran's active military service and current diagnoses of depression, left elbow disorder, and right shoulder disorder. The physician(s) must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's current major depressive disorder (if any at this time), left elbow disorder (left triceps tendonitis) (if any at this time), and right shoulder disorder (right labral tear) (if any at this time) were incurred in service or are otherwise related to service, to include the Veteran's assertions of symptoms therein. The critical question is whether the Veteran currently has these chronic problems and whether it is at least as likely as not related to service from January 2001 to December 2007. A rationale should be given for all opinions and conclusions expressed. If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond. If an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available. 3. Thereafter, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have 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 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). ____________________________________________ JOHN J. CROWLEY 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).