Citation Nr: 1322028 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 08-20 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for teeth grinding. 3. Entitlement to service connection for chronic upper respiratory infections. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from February 1998 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2010, the Board denied entitlement to service connection for a right shoulder disorder, bilateral hearing loss, sinus bradycardia, and anemia, and remanded the issues of entitlement to service connection for a left shoulder disorder, left ankle disorder, teeth grinding, and chronic upper respiratory infections for further development. In September 2011, the RO granted entitlement to service connection for left ankle sprain. The issues of entitlement to service connection for teeth grinding and chronic upper respiratory infections are remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT Left upper extremity radiculopathy, claimed as left shoulder disability, is associated with the Veteran's service-connected cervical strain. CONCLUSION OF LAW Left upper extremity radiculopathy, claimed as left shoulder disability, is caused by the Veteran's service-connected cervical strain. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This is so because the Board is taking action favorable to the Veteran by granting the issue of entitlement to service connection for left upper extremity radiculopathy. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In this case, the Veteran contends that he is entitled to service connection for a left shoulder disability. The Veteran has been diagnosed with, and was denied service connection for, left shoulder tendonitis. However, he has asserted that he has additional disability of the left shoulder that may be related to his service or his service-connected neck disability. Specifically, the Veteran has indicated that he has pain in his left shoulder that radiates from his neck. In an examination dated in August 2007, the Veteran reported that he had intermittent flare-ups of neck pain radiating to his left arm, and that certain movements, such as right lateral flexion and extension of the neck caused pain with radiation to the left arm. Between flare-ups, range of motion was indicated to be normal. The Veteran reported that he thought his left shoulder was all right with occasional pain and popping. On examination of the shoulders, there was no tenderness to palpation and both shoulders showed active and passive flexion to 180 degrees, abduction to 180 degrees, and internal and external rotation to 90 degrees. Examination of the neck indicated some limitation of motion and pain on the left side of the neck. The Veteran was diagnosed with recurrent cervical strain and recurrent left shoulder tendonitis. An additional examination was conducted in May 2008. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. Examination of the left shoulder noted daily ache over the base of the neck radiating to the left trapezius muscle and pain on the left sided muscle of the neck upon turning his head to the right. Examination of the neck found mild tenderness to deep pressure over the left trapezius muscle. Both shoulders were normal and asymptomatic with normal range of motion. The Veteran was diagnosed with right and left shoulder and neck pain, but indicated that the shoulders and cervical spine were normal on examination. Finally, the Veteran was examined in January 2011 for his neck and shoulder. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran reported that, in 2003, he was doing crunches and had an abrupt onset of pain in his left posterior neck, shoulder, and arm. The examiner indicated that he did not have any primary problems with his left shoulder. The Veteran reported that he would get intermittent pain starting in the neck and radiating into the posterior left shoulder down into the posterior arm stopping at the elbow. He was noted to get paresthesias with this and local pain. The Veteran reported no pain in between episodes. On examination, the Veteran had no current tenderness over the posterior musculature, no spasm, and no impairment of sensation over the left upper extremity or shoulder. The shoulder examination indicated no symptoms. The Veteran was diagnosed with recurrent cervical strain with intermittent left radiculopathy. The examiner stated that shoulder pain experienced by the Veteran was radiated pain from the Veteran's neck injury that was described in the service treatment records, and not a separate issue. No other shoulder disabilities were diagnosed. Based on the foregoing, entitlement to service connection for left upper extremity radiculopathy associated with his service-connected cervical strain, is warranted in this case. The Veteran's claims file has consistently indicated that the Veteran had pain and left arm radicular symptoms that have been connected to his service-connected neck disability. While the first two examination reports did not indicate a specific diagnosis related to these complaints, the January 2011 VA examiner specifically found left radiculopathy associated with the Veteran's recurrent cervical strain. The preponderance of the evidence is in favor of the Veteran's claim for entitlement to service connection for left upper extremity radiculopathy and, as such, service connection is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for left upper extremity radiculopathy is granted. REMAND The Veteran has not been afforded the statutory and regulatory notice required with respect to the claims of entitlement to service connection for chronic upper respiratory infections and teeth grinding. The Veteran was sent several letters in connection with his claims, dated in July 2007, and November and December 2010. However, none of these letters reflect that the Veteran has been provided with the required notice as to the information and evidence necessary to substantiate his claims. On remand, the RO should ensure that the Veteran receives the statutory and regulatory compliant notice with regard to these claims. In this regard, this matter was remanded in part in August 2010 in order to provide such notice with respect to the claim of entitlement to service connection for teeth grinding. This notice, however, was not provided. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was provided a VA examination in connection with his dental claim in May 2008. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The examiner indicated that the Veteran reported that he may have had bruxism in the Fall of 2006 or Spring 2007, as noted by a dental hygienist. He was provided with a night guard despite the fact that the Veteran was experiencing no symptoms. The Veteran later experienced masticatory muscle fatigue after wearing the night guard. After examination, the May 2008 examiner did not find bruxism. Thereafter, the Veteran submitted a report of his private dentist dated in January 2011, diagnosing bruxism and indicating that the Veteran needed a night guard to help prevent future damage, crack, or fracture to the teeth. Based on the foregoing, the Board finds that this matter should be remanded for a VA examination to determine if the diagnosed bruxism is related to the Veteran's military service. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Upon remand, the Veteran should be afforded an opportunity to submit additional medical evidence relevant to his claims that may not be associated with the claims file. Any VA treatment records should also be updated. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is remanded for the following action: 1. The Veteran must be provided with full statutory and regulatory notice, including notice as to the information and evidence necessary to substantiate his claims of entitlement to service connection for bruxism and chronic respiratory infections. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, 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) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 3. After all available treatment records have been associated with the claims file, the Veteran must be afforded the appropriate VA examination to determine whether any bruxism found or previously diagnosed is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any currently or previously diagnosed bruxism is related to the Veteran's active duty service. The examiner must also state whether any diagnosed currently or previously diagnosed bruxism is due to or aggravated by any service-connected disorder. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated. If any issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs