Citation Nr: 1320911 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 12-19 920 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for arthritis of the left hand, including as secondary to residuals, crush injury, left middle finger. 2. Entitlement to service connection for cirrhosis of the liver. (The issue of entitlement to additional vocational rehabilitation training benefits under the provisions of Chapter 31 of Title 38 of the United States Code is the subject of a separate appellate decision.) REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to September 1977. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an August 2008 rating decision, by the New Orleans, Louisiana, Regional Office (RO), which denied the Veteran's claims of entitlement to service connection for arthritis and service connection for cirrhosis of the liver. He perfected a timely appeal to that decision. In April 2013, the Veteran appeared at the RO and testified at a videoconference hearing before the undersigned Acting Veterans Law Judge, sitting in Washington, D.C. The Veteran accepted this hearing in lieu of an in-person hearing. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his 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. VA will notify the appellant if further action is required. REMAND The VCAA requires that VA must provide notice that informs the claimant (1) of the information and evidence not of record that is necessary to substantiate the claim, (2) of the information and evidence that VA will seek to provide, and (3) of the information and evidence that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1). After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5103A. In this case, the Veteran maintains that he developed cirrhosis of the liver as a result of military service. The Veteran also maintains that he developed arthritis of the left hand as a result of an inservice injury. At his personal hearing in April 2013, the Veteran reported that he was diagnosed with cirrhosis of the liver in 1985 while undergoing treatment at the neurology center in Beaumont, Texas; he stated that it was there that it was discovered that he had cirrhosis. The Veteran maintained that his cirrhosis is related to service because he was an alcoholic while in Vietnam. He stated that he was not treated in service because it was not yet an issue when he was on active duty. The Veteran reported that he suffered an injury to his fingers while on maneuvers in Alaska in the 1970's; he stated that it took three years of surgeries to put his fingers back together. The Veteran testified that he sought treatment for arthritis at the VA medical center in Alexandria, Louisiana in 1991 and 1992; he has received treatment for arthritis from that time until today. The Veteran indicated that he was prescribed medication for arthritis; he stated that he gets a lot of muscular pains in his fingers. The Veteran noted that he his job requires him to use scissors and brushes, and his fingers usually become stiff and lock up. The Board notes that the Veteran's testimony indicates that there may be outstanding VA medical records. In its July 2012 statement of the case, the RO indicated that they did not request records from the Shreveport VAMC for the period from 1993 to 2004, or from Alexandria VAMC for the period from 1993 to 2001 because those records do not pertain to the Veteran's claim. However, the Board notes that it is not apparent that the RO has reviewed those records in reaching its decision that they do not pertain to the claim. In light of the Veteran's report of treatment, and the lack of any indication in the claims file of a request for the records in question, the RO should attempt to obtain any records associated with the Veteran's reported treatment at Alexandria VAMC during the period from 1993 to 2001. The Board notes that VA has a duty to obtain all outstanding identified VA treatment records as such records are constructively in the possession of VA adjudicators during the consideration of a claim. Dunn v. West, 11 Vet. App. 462, 466-67(1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the Board finds that the Veteran's appeal must be remanded to obtain these treatment records. Additionally, in the Statement of Accredited Representation in Appealed Case (VA Form 646), the service representative maintains that the Veteran has arthritis of the left hand which was caused by or aggravated by the crush injury to the left middle finger. He noted that the Veteran states that the arthritis began shortly after the operation on his finger in service and continues to this day. The Board notes that the pertinent regulations state that disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service- connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In light of the service representative's assertion that the Veteran's has arthritis of the left hand which was due to or aggravated by the crush injury to the left middle finger, the Board has determined that the Veteran should undergo a VA examination to assess the nature and etiology of any left hand arthritis disability, to include whether any such disability is proximately due to or aggravated by his service-connected residuals, crush injury, left middle finger. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Proper consideration of the Veteran's secondary service connection is also needed. As noted above, the VCAA requires that VA must provide notice that informs the claimant (1) of the information and evidence not of record that is necessary to substantiate the claim, (2) of the information and evidence that VA will seek to provide, and (3) of the information and evidence that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1). The letter issued to the Veteran in the current appeal in January 2008 with regard to his arthritis claim provides only the criteria necessary to support this issue on a direct basis. As the criteria necessary to support service connection for arthritis on a secondary basis has not been provided to him, a corrective VCAA notification letter should be issued to him on remand. The case is REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. The AOJ should send to the Veteran a corrective VCAA notice letter. The letter should notify him of the information and evidence necessary to substantiate his claim for service connection for arthritis of the left hand on a secondary basis. The Veteran should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 2. The AOJ should request the Veteran's treatment records (a) from the Shreveport VAMC for the period from 1993 to 2004, and (b) from the Alexandria VAMC for the period from 1993 to 2001. The claims folder should document the efforts made to obtain these records along with any negative responses, and the VA facilities must include a search of archived or retired records. If the records cannot be obtained, a letter should be sent to the Veteran informing him of the steps taken to obtain the records, listing alternative sources, and requesting that he furnish any such records in his possession or that he identify the possible location of such records. 3. Schedule the Veteran for an appropriate VA examination to ascertain the nature and etiology of the left hand arthritis disability. The Veteran's claims folder and a copy of this Remand must be provided to the examiner for review prior to completion of the examination. The examiner should respond to the following: a) Identify whether the Veteran currently suffers from arthritis of the left hand. For any arthritis of the left hand found, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) proximately due to the Veteran's service-connected crush injury, left middle finger and/or b) For any arthritis of the left hand found, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) aggravated by the Veteran's service-connected crush injury, left middle finger. All opinions and conclusions expressed must be supported by a complete rationale. 4. The AOJ should ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the AOJ should re-adjudicate the Veteran's claims on the basis of all evidence of record and all applicable laws and regulations. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, and any additional applicable laws and regulations. The SSOC must provide reasons and bases for the decision reached. Thereafter, the Veteran and his representative should be given opportunity to respond. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the Veteran until he receives further notice. 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). _________________________________________________ Thomas H. O'Shay Acting 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).