Citation Nr: 1326209 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 09-16 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for residuals of a concussion. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for a lumbar spine disability. 4. Entitlement to service connection for a right ankle disability. 5. Entitlement to service connection for a bilateral shoulder disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1983 to May 1987. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. REMAND On review of the record the Board has found that further development is needed for VA to fulfill its duties mandated under the VCAA. The record reflects that the Veteran has been denied several times for Social Security Administration (SSA) disability benefits based on his low back disability and other unspecified physical disabilities. The medical records considered by SSA in connection with such applications for benefits are constructively of record, may contain pertinent information, and must be secured. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The record also reflects that the Veteran applied for Workers' Compensation benefits based on an October 2004 accident at work when he injured his back. All available records pertaining to the Veteran are to be obtained from the appropriate state Workers' Compensation agency. The Veteran's service treatment records (STRs) document the following findings. In August 1984, he was involved in a motorcycle accident and was treated for whiplash, a head concussion, neck pain, middle to low back pain, and right ankle pain. He was given a Physical Profile in August 1984 for whiplash, a sprained back, and a sprained right ankle. In January 1985, he was treated for facial burns after a rocket motor exploded nearby. His STRs are silent for any complaints, findings, or treatment of any shoulder disability. The Veteran's postservice private and VA treatment records document treatment for light-headedness, neck pain, back pain, and bilateral shoulder pain. These records also document that he sustained postservice injuries involving his shoulders (in May 1995, at work), head (in February 1998), neck (in July 2001, at work) and back (in January 2002 and October 2004, both times at work). At a January 2007 VA PTSD examination, the Veteran described his in-service motorcycle accident and burn accident. He stated that his "physical injuries and chronic pain" started with the motorcycle accident in service and were worsened with the rocket motor explosion in service because he was allegedly "thrown" and it "felt like a car landing on [his] back." At the March 2013 hearing, the Veteran testified regarding his motorcycle accident and burn accident in service, and the current symptoms of the claimed disabilities. He also testified that he first sought VA treatment for his physical conditions in 2005; that he began seeing a new private primary care doctor in 2010 (Dr. Reyes, at the Rockford Clinic); and that he was given a CAT scan and nuclear stress test at the VA Medical Center in Milwaukee in the summer of 2011. As reports of ongoing VA treatment are constructively of record (and are likely to contain pertinent information), they must be obtained. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition, any private treatment records pertaining to the claimed disabilities also have bearing on the instant claims and must be secured. In light of the above, appropriate examinations to ascertain the nature and likely etiology of any current residuals of a concussion, cervical spine disability, lumbar spine disability, right ankle disability, and bilateral shoulder disability are needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following: 1. The RO should secure from SSA complete copies of all records pertaining to the Veteran, including any decisions and any medical evidence relied upon in making those decisions. If such is provided by disc, the RO should print out the records and associate the copies with the claims file. Any negative search result is to be noted in the record and communicated to the Veteran. 2. The RO should contact the appropriate state Workers' Compensation agency and request copies of all records pertaining to the Veteran. He must provide any authorization needed for such development. Any negative search result is to be noted in the record and communicated to the Veteran. 3. The RO should ask the Veteran to identify the provider(s) of any additional (records of which are not already associated with the record) treatment or evaluation he has received for his claimed disabilities, and to provide all releases necessary for VA to secure any private records of such treatment or evaluation (including from Dr. Reyes at the Rockford Clinic). The RO should obtain complete records of all such treatment and evaluation from all sources identified. If any records requested are unavailable, the reason must be explained for the record. In addition, the RO should secure for the record complete copies of the clinical records of all VA treatment the Veteran has received for his claimed disabilities which are not already of record (including any treatment in 2005, and a CAT scan and nuclear stress test in the summer of 2011). If any records requested are unavailable, the reason must be explained for the record. 4. After the development sought above is completed, the RO should arrange for appropriate examinations of the Veteran to ascertain the nature and likely etiology of any current residuals of a concussion, cervical spine disability, lumbar spine disability, right ankle disability, and bilateral shoulder disability. The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA) must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated should be completed. Based on review of the record and examination of the Veteran, the examiner(s) must provide opinions that respond to the following: (a) Please identify (by medical diagnosis) each concussion residual and/or each disability entity of the cervical spine, lumbar spine, right ankle, and bilateral shoulders found. If no such residuals and/or disabilities are diagnosed, please reconcile that conclusion with the medical evidence of record. (b) As to each concussion residual and/or disability entity of the cervical spine, lumbar spine, right ankle, and shoulders diagnosed, please identify the most likely etiology. Specifically, is it at least as likely as not (a 50% or better probability) that such was incurred or aggravated during the Veteran's active service? The examiner must specifically consider and address the August 1984 motorcycle accident in service, the January 1985 burn accident in service, all relevant STRs, and all relevant postservice treatment records (including those noting postservice injuries). The examiner must explain the rationale for all opinions. 5. The RO should ensure that all development sought is completed, arrange for any further development suggested by additional evidence received, and then review the record and readjudicate the claims on appeal. If any benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The Veteran has 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 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). _________________________________________________ GEORGE R. SENYK 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).