Citation Nr: 1326640 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-25 608 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a cervical spine disorder to include arthritis. 2. Entitlement to service connection for a disability manifested by numbness and tingling in the shoulders and upper extremities, including as secondary to a cervical spine disorder. 3. Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Joseph Davis, Agent ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from May 1968 to September 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Boise RO that, in part, granted service connection for PTSD, but denied service connection for a cervical spine disorder and a disability involving numbness in tingling in the shoulders and upper extremities. The Veteran requested a video conference hearing in August 2011, but he later withdrew his request in December 2012. The Board notes that in May 2012, forms were received that revoked power of attorney from one accredited agent in favor of Joseph Davis, another accredited agent. 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 contends he had disabilities involving the cervical spine, shoulders, and arms as a result of injuries incurred in service. In particular, he asserted there were several occasions in which he was knocked backwards and hit his head and neck during mortar attacks, landed on his neck and shoulders in order to avoid being shot at close range, and one occasion in which he jumped out of a helicopter after it hit the side of a mountain. See statement received March 2010. Although there are no service treatment records that document these events, the Veteran's personnel records and DD Form 214 show he received a RVN Cross of Gallantry with Palm and Purple Heart for shell fragment wound injuries incurred during combat. Any Veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service incurrence if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation, and, to that end, every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). These provisions, however, deal with the question of whether a particular disease or injury occurred in service; that is, what happened then, and not the question of either current disability or nexus to service, as to both of which competent medical evidence is generally required. In other words, the above-cited provisions do not presumptively establish service connection for a combat Veteran; rather, they relax the evidentiary requirements for determining what happened in service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521, 524 (1996). Based on the Veteran's medals and decorations, his status as a combat Veteran is established. Accordingly, 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) are for application in this case. The Veteran was afforded a VA examination in August 2010 to determine the likely etiology of the claimed cervical spine disorder and shoulder and upper extremities disorder involving numbness and tingling. Since the examiner did not have the claims file to review and she did not clearly explain why she was unable to render an opinion without speculating the examination is deemed inadequate and, therefore, the Board has insufficient information to decide the service connection claims. The record also indicates there may be outstanding records that are pertinent to the claim that should be sought. In a February 2010 statement, the Veteran reported he had worked 4 years as a Deputy Sheriff in Florida. Since he likely had physical examinations as a law enforcement officer, these records should be sought since they may provide additional information regarding the claimed disabilities. In a June 2010 statement, the Veteran reported receiving treatment from Dr. Bell, who was no longer in practice, and that those records were transferred to Dr. Geoffrey Emry. The RO requested records from Dr. Emery for the time period from January 2009 to December 2010. All of the records received appeared to have originated from Dr. Emery; therefore, it is unclear whether a request for earlier records would have produced copies of the records transferred from Dr. Bell's office. Furthermore, the Veteran indicated there were more recent pertinent records that should be obtained. Thus, an additional request for records must be made. The Veteran contends the disability involving numbness and tingling in the shoulders and upper extremities is secondary to the claimed cervical spine disorder. Since the Veteran was not given proper notice of the type of evidence needed to support a secondary service connection claim, this must be corrected on remand. With regard to the service-connected PTSD, the Veteran contends that the disability warrants at least a 30 percent rating. In his notice of disagreement, he indicated that he had difficulty talking about his symptoms with a stranger. Since he may not have fully reported his symptoms, the examination report may not fully reflect the current level of disability. The Veteran should therefore be scheduled for another examination and he is advised to fully cooperate and provide complete information to allow the examiner to accurately assess the level of impairment due to PTSD, in order to avoid any prejudice to the appellant. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for claimed cervical spine, shoulder, and upper extremity disorders. The Veteran should also be asked to identify the sheriff's department where he worked for 4 years in order to obtain any medical records associated with his employment. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. The request for copies of treatment records should specifically include treatment records in possession of Dr. Geoffrey Emry dated prior to January 2009 and since December 2010. 2. Send the Veteran a VCAA letter on the issue of secondary service connection as it pertains to whether the disability involving numbness and tingling in the shoulders and upper extremities was caused or aggravated by the cervical spine disorder. See 38 C.F.R. § 3.310 (2012). 3. Once the above development is completed and any records received have been associated with the claims file or e-folder, schedule the Veteran for an appropriate VA examination for the purpose of determining the nature and etiology of his claimed cervical spine, bilateral shoulder, and upper extremities disorders. All indicated tests and studies are to be performed. * In conjunction with the examination, the claims folder and a copy of this REMAND must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. * The VA examiner should identify all cervical spine disorders found to be present as well as any disorders that produce numbness and tingling in the Veteran's shoulders and upper extremities. * Based on the examination, review of the claims file, and the Veteran's reports of neck and shoulder injuries - the occurrences of which are considered credible even without evidence of treatment in service because it is consistent with his service - the examiner should respond to the following: a) Does the Veteran have a cervical spine disorder that at least as likely as not (50 percent or better probability) had its onset during service or is otherwise related to any events or injuries of service? b) If the Veteran has an identified disorder that involves tingling and numbness in the shoulders and upper extremities, opine as to whether the disorder at least as likely as not had its onset during service or is otherwise related to any event or injury in service. c) If the examiner finds the Veteran has a cervical spine disorder at least as likely as not related to service AND has a disorder involving numbness and tingling of the shoulders and upper extremities, opine whether the cervical spine disorder at least as likely as not caused or aggravated the shoulder/arm disorder beyond its natural progression. * The examiner must provide a complete explanation of the underlying reasoning used to reach each opinion with reference to pertinent evidence. Failure to adequately explain the reasoning will result in a remand for an addendum. 4. Schedule the Veteran for a VA psychiatric examination. The entire claims file and a copy of this REMAND must be made available to the examiner. The examiner must state in the report that the claims file has been reviewed. All necessary studies and tests should be conducted. Following examination of the Veteran, the examiner should identify what symptoms, if any, the Veteran currently manifests, or has manifested in the recent past, that are attributable to his service-connected PTSD. The examiner must conduct a detailed mental status examination. The examiner must also discuss the effect, if any, of the Veteran's PTSD on his social and occupational adaptability. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's PTSD consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and explain the significance of the score. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 6. Finally, readjudicate the Veteran's claims on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his Agent with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return this appeal to the Board for further appellate review. The appellant 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). _________________________________________________ P. M. DILORENZO 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).