Citation Nr: 1324131 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 08-36 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1961 to September 1954. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was scheduled to present testimony before a traveling Veterans Law Judge in February 2011; however, he failed to report to the hearing. As the Veteran has not requested that the hearing be rescheduled, the Board deems his request for such a hearing to be withdrawn. See 38 C.F.R. § 20.704 (2012). In April 2011, the Board remanded this claim for additional development. The requested development has been completed and the case has now been returned to the Board for further appellate consideration. 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 The Veteran essentially contends that he has a current left shoulder disability related to an event or injury during his active military service. Specifically, the Veteran's statements documented in post-service VA treatment records show that he reported frequent falls aboard the U.S.S. PITTSBURGH and frequent lifting of heavy laundry bags. In December 2007, he indicated that he injured his low back and left shoulder in December 1952. In June 2008, he asserted that he received 30 days or more of hospital treatment for back and rib injuries sometime between June and August 1953 while stationed aboard the U.S.S. PITTSBURGH. A review of the record shows that the Veteran's service treatment records are grossly incomplete and contain only his enlistment examination, a sick call log, a dental treatment record, and a note dated in January 1995. The sick call log shows that the Veteran was treated with heat for a left shoulder strain and returned to duty on December 27, 1952. In addition, the note dated in January 1955 suggests that the Veteran service treatment records may have been transferred to the Department of the Navy Bureau of Medicine and Surgery located in Washington, DC. A Formal Finding of Unavailability as to the Veteran's complete service treatment records dated in July 1996 shows that his complete service treatment records were requested from the National Personnel Records Center (NPRC) on multiple occasions in 1995 and 1996; however, no response was ever received. Development efforts in an attempt to obtain the Veteran's complete service treatment records must continue until negative responses have been received from all appropriate records repositories. Thus, additional development efforts are necessary in an attempt to locate the Veteran's complete service treatment records. There is also no indication that the Veteran's service personnel records have been requested for review. As service personnel records may contain line of duty determinations pertaining to injuries sustained during service and/or reports of a limited physical profile, it is necessary to obtain the Veteran's complete service personnel records for review. Additionally, post-service VA treatment records currently associated with the claims file from the Central Texas VA Healthcare System, to include the Dallas and Temple, Texas VA Medical Centers (VAMCs) and the Austin VA Outpatient Clinics (OPC) are dated from September 1995 to February 1996, and from November 2005 to April 2008. A September 1995 VA treatment record states that the Veteran was "being seen in [that] clinic primarily for . . . degenerative joint disease." Also, a VA problem list from the Austin VA OPC dated in November 2005 shows that the Veteran was diagnosed with rotator cuff syndrome of an unspecified shoulder in May 2000. Thus, it appears that there are additional relevant VA treatment records from the aforementioned VA facilities dating prior to September 1995 and from February 1996 to November 2005 that have not yet been obtained for review. Also, VA treatment records were most recently obtained in April 2008. As VA is deemed to be in constructive possession of VA treatment records and to ensure that the record is complete, VA treatment records from the aforementioned VA facilities dating prior to September 1995, from February 1996 to November 2005, and since April 2008, must be obtained for review. The records request must specifically state that a search must be conducted of any appropriate records repository where archived and/or retired VA treatment records from the aforementioned VA facilities may be stored and that a negative response must be provided if the records requested are unavailable for review for any reason. If and only if the additional service and VA treatment records requested herein show complaints, findings, or diagnosis pertaining to the claimed left shoulder disability dating prior to 2000, then an addendum etiological opinion must be obtained from the examiner who conducted the March 2012 VA joints examination or another qualified examiner if she is unavailable, to ensure that the complete history of the claimed disability has been reviewed and considered. 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. The RO/AMC must request the Veteran's complete service personnel records from the NPRC and any other records repository deemed appropriate, to specifically include any line of duty determinations and any reports of a limited physical profile. Also request from the NPRC, the Navy Bureau of Medicine and Surgery (see January 1955 letter contained in the Veteran's service treatment records), and any other records repository deemed appropriate, the Veteran's complete service treatment records, to specifically include any morning/sick reports, Surgeon General's Office Extracts, and records of any hospital and clinical treatment pertaining to the Veteran and any treatment received for injury to the back and/or shoulder while serving aboard the U.S.S. PITTSBURGH from December 1952 to February 1953 and June to August 1953. All pertinent follow-up must be undertaken in accordance with the M21-1MR, III.iii.2.B.14 for obtainment of the Veteran's complete service personnel and treatment records. 2. Request any relevant VA inpatient and outpatient treatment records from the Central Texas VA Healthcare System, to include any records from the Dallas and Temple VAMCs and the Austin OPC dating from September 1954 to September 1995, February 1992 to November 2005, and since April 2008. The request for such records must explicitly state that a search must be conducted of any appropriate records repository where archived/retired records dated during the aforementioned time periods may be stored. A negative response must be provided if the requested records unavailable for review for any reason. If, after making reasonable efforts to obtain any identified records the RO/AMC is unable to secure the same, the RO/AMC must notify the appellant and his representative and (a) identify the specific records that are unable to be obtained; (b) briefly explain efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The appellant and his representative must then be given an opportunity to respond. 3. If and only if the additional service and VA treatment records requested herein show complaints, findings, or diagnosis pertaining to the claimed left shoulder disability dating prior to 2000, then an addendum etiological opinion must be obtained from the examiner who conducted the March 2012 VA joints examination or another qualified examiner if she is unavailable. Specifically, the examiner should indicate whether it is at least as likely as not (50 percent or greater) that the Veteran's left shoulder disability is related to his military service, to include in-service shoulder injury. 4. After completing the above, and any other development deemed necessary, to include obtainment of an addendum opinion (if necessary as described above) readjudicate the Veteran's claim for service connection for a left shoulder disability. If the benefit sought on appeal is not granted, provide the Veteran and his representative with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ DAVID L. WIGHT 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).