Citation Nr: 1328876 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 13-00 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of a broken right collar bone. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from September 1965 to June 1970. He received the Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The November 2009 rating decision also granted service connection for posttraumatic stress disorder (PTSD), degenerative arthropathy of the left knee, tinnitus, and bilateral hearing loss, and denied service connection for esophageal stricture, reduced lung capacity, and degenerative joint disease of the right and left hips. The Veteran filed a notice of disagreement in November 2010 with the initial ratings for PTSD, degenerative arthropathy of the left knee, tinnitus, and bilateral hearing loss, and the denial of service connection for esophageal stricture, reduced lung capacity, and degenerative joint disease of the right and left hips. A statement of the case was issued in December 2012 with regard to these issues. However, in his December 2012 substantive appeal the Veteran expressly limited his appeal to the issue of the right collar bone. Thus, the claims related to PTSD, degenerative arthropathy of the left knee, tinnitus, bilateral hearing loss, esophageal stricture, reduced lung capacity, and degenerative joint disease of the right and left hips are not in appellate status and are not before the Board at this time. See generally 38 U.S.C.A. § 7105 (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran underwent a VA examination in October 2009. The Board finds, however, that this examination is not sufficient for rating purposes as the examiner said he or she could not provide an opinion without resort to speculation. The record shows the Veteran alleges injuring his right collarbone in combat in service. Although this injury is not specifically noted in the Veteran's service treatment records (STRs), because the Veteran is a documented combat veteran and because his allegations are consistent with the circumstances of his military service, the Board finds under the provisions of 38 U.S.C.A. § 1154(b) that the Veteran did injure his collarbone in the manner alleged. Additionally, current medical evidence, specifically the October 2009 VA examination report, reflects that the Veteran has a status post clavicular fracture/right shoulder strain. An August 2007 private treatment record from Morton Plant Hospital shows that the Veteran reported having an "AC joint resection of the right shoulder." VA has attempted to obtain the records associated with this surgery, but the records are unavailable. The Board finds that in light of the current condition, the post-service operation, and the conceded in service injury, that a VA examination to address the etiology of the Veteran's current condition is required. See generally McLendon v. Nicholson, 20 Vet. App. 79 (2006). Relevant ongoing medical records should also be requested if not yet associated with the Veteran's claims file. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Obtain any of the Veteran's relevant VA treatment records that have not yet been associated with the claims file, if any are available. 2. Arrange for the Veteran to undergo a VA examination to address the etiology of his current right shoulder/collarbone condition. The claims file must be made available to the examiner for review in connection with the examination and such review must be documented in the examination report. The examiner should diagnose any current collarbone disability, to include residuals of a fracture collarbone. The examiner should provide an opinion on the likelihood of a relationship between any current collarbone disability and the injury in service described by the Veteran. For purposes of this opinion, the examiner should assume that an injury occurred even though it is not documented in the Veteran's STRs. In providing an opinion, the examiner should determine if it is at least as likely as not (a degree of probability of 50 percent or higher) that the current disability is related to the Veteran's military service. The term "as likely as not" means at least 50 percent probability. It does not however mean merely within the realm of medical possibility, rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must discuss the underlying medical rationale for all opinions expressed, whether favorable or unfavorable, citing to specific evidence in the file. 4. Then readjudicate the claim for service connection for residuals of a broken right collarbone. If this claim is not granted to the Veteran's satisfaction, send him and his representative another Supplemental Statement of the Case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. 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). _________________________________________________ M. N. HYLAND Acting 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).