Citation Nr: 1321746 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 03-33 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a chronic chest disability. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from March 1980 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) from a July 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Denver, Colorado. This matter was previously before the Board in December 2007 and May 2008 and was remanded for further development. It was again before the Board in November 2010 when the Board denied the Veteran's claim. The Veteran appealed the November 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 memorandum decision, the Court vacated that portion of the Board's November 2010 decision dealing with the above mentioned issue and remanded the case to the Board for further readjudication consistent with the Court's decision. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran alleges that he has a chest disability which first manifested while he was stationed in Germany and most likely results from "heavy lifting, gunnery, company road marches that had diesel fumes and dust coming from the movement of tanks and armor personnel carriers." The Board notes that in its prior November 2010 decision, in the Secretary's appellate brief, in the appellant's appellate brief, and in the Court's August 2012 memorandum decision, some incorrect dates are listed for the STRs. The correct dates are as stated below. A March 13, 1981 STR reflects that the Veteran sought treatment for complaints of pain in the chest for three days in duration. His blood pressure was normal, his lungs were clear, and he had normal range of motion. He was diagnosed with a muscle spasm. (This was not a May 13, 1981 STR as incorrectly reported previously by the parties.) Approximately one and a half weeks later, on March 25, 1981, the Veteran again sought treatment. The March 25, 1981 STR reflects that the Veteran sought treatment for complaints of chest pain for two weeks in duration. He reported that the pain was centered in the chest and did not radiate. It was reported to be a dull steady pain which gave the Veteran trouble sleeping and breathing. His lungs were clear. The assessment was "sore muscle". An October 28, 1981 STR reflects that the Veteran complained of a pulled muscle on the right side of his chest. He was diagnosed with a pulled muscle of one day in duration, and decreased range of motion. (This was not an October 1982 STR as incorrectly reported previously by the Secretary and the Court; in this regard the Board notes that the date of 1981 is supported by both the Veteran's unit assignment in 1981 and his age.) A January 1983 Health Questionnaire completed three months prior to his separation from service, reflects that the Veteran reported that there had not been a change in his health within the last 2 years. In sum, the Veteran complained of chest pain of approximately 2 weeks duration in March 1981, and chest pain of one day duration in October 1981. The Veteran separated from service in March 1983. The Veteran's principle occupation for at least three years after separation from service was in construction. He was also employed, post-service, as an office installer and maintenance worker. (See VA Form 22-1990 received by VA in July 1987, spouse's statement, and VA examination reports.) An August 2003 VA examination reflects that there was no bony abnormality found on X-ray and the examiner indicated that there was insufficient evidence to diagnose a medical condition. The report reflects that the Veteran reported that "on a rare occasion, which is perhaps a couple times yearly, he will get an upper retrosternal discomfort". The Veteran reported that the symptoms will spontaneously resolve and do not last usually more than a few hours. The examiner could not reproduce any discomfort with sternal or rib pressure. The examiner noted that the Veteran had two episodes of musculoskeletal chest pain in service, in March 1981 and in October 1982 (as noted above, this would have been October 1981, not October 1982.) An October 2008 VA examination report reflects a diagnosis of costochondritis. At that time, the Veteran reported chest pain and pressure that occurs two-to-three times per month and lasts three-to-four minutes. The examiner diagnosed the Veteran with costochondritis, and noted that it is a self-limited condition that resolves with symptomatic therapy. The examiner opined that it is less likely than not that the Veteran's costochondritis is related to the documented complaints of chest pain in service or any other incident of military service. The examiner further reflected that the chest condition for which the Veteran was seen for in service was presumptively resolved, as he was seen twice for chest pain during the early part of his military service and not seen again for the condition during the remainder of his service. However, t he examiner failed to discuss the October 28, 1981 STR which reflects a pulled right side muscle of one day in duration. The evidence of record reflects that the Veteran reported that he is unemployed. The Veteran has indicated that he stopped working based on disability. The Board also notes that in a claim form submitted in November 2011 he reported that he gets $900 per month from Social Security. The Board is mindful of the decision in Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010), in which the Court noted that the government need not obtain records in every case in order to rule out their relevance and stated that such decision would be akin to a determination that all medical records must be obtained. Id. at 1323. Similarly, it is not the case that a record's relevance can always be determined without reviewing the record itself. "The legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the Veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records." Id. Thus, VA should attempt to obtain all SSA records, if any. Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration (SSA) and obtain a copy of all agency records and any decision which awarded or denied the Veteran SSA disability benefits, including all medical records used to make the decision. 2. Thereafter, request the October 2008 VA examiner, or another clinician if she is unavailable, to provide a supplemental opinion. In her October 2008 opinion, the examiner noted that the Veteran had sought treatment on March 13 and March 25, 1981 and was diagnosed with spasination of muscles and sore muscles; however, the examiner failed to note that the Veteran sought treatment on October 28, 1981 for complaint of a pulled muscle of one day duration; the Board is unsure if this additional date of treatment affects the examiner's rationale; thus, a supplemental clinical opinion with further discussion is warranted. In addition, a discussion of restrosternal discomfort, costochondritis, pulled muscles, and the Veteran's reported symptoms and clinical findings in service, in August 2003, and in October 2008, may be helpful to the Board. If an adequate opinion cannot be provided without another VA examination, the Veteran should be scheduled for an examination. All necessary tests should be performed. The claims folder should be reviewed in conjunction with such examination and the examination report should indicate that such a review was performed. The examiner is requested to furnish an opinion concerning whether it is at least as likely as not (50 percent or greater) that the Veteran has a current chest disability causally related to his military service. The examiner should consider the entire claims file to include : a) the March 13, 1981 STR; b) the March 25, 1981, c) the October 28, 1981 STR, d) the August 2003 VA examination report, and e) the Veteran's post-service employment in construction, as an office installer, and as a maintenance worker. (See VA examinations and VA Form 22-1990.) As noted above, a discussion of restrosternal discomfort, costochondritis, pulled muscles, and the Veteran's reported symptoms and clinical findings in service, in August 2003, and in October 2008, may be helpful to the Board. 3. After undertaking any other development deemed appropriate, the RO should readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran, and his representative, if any, with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL MARTIN 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).