Citation Nr: 1332272 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-22 861A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a left shoulder disability, to include rotator cuff tendinitis. 3. Entitlement to service connection for a bilateral ankle disability. 4. Entitlement to service connection for a bilateral arm disability. 5. Entitlement to service connection for a sinus disability. 6. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran had a period of active duty for training from August 4 to December 13, 1980, with additional active service from February 3 to October 19, 2003, and from November 2006 to March 2008, in addition to apparent other periods of active and inactive duty for training which are at this time unverified. This case comes before the Board of Veterans' Appeals (Board) on appeal of July and August 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a rating decision of December 2012, the Veteran was found not competent to handle the disbursement of VA funds. Moreover, based on a review of the file, it would appear that his wife has been appointed his spouse-payee. Inasmuch as it is at this time unclear whether the Veteran's spouse is, in fact, his legal custodian, for purposes of this adjudication, the Veteran himself will be considered the appellant. In correspondence of October 2009, the Veteran indicated that, in addition to the issues currently before the Board, he wished to seek entitlement to service connection for a bilateral elbow disability. Inasmuch as that issue has not been developed or certified for appellate review, it is not for consideration at this time. It is, however, being referred to the RO for clarification and, if necessary, appropriate action. Finally, for reasons which will become apparent, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND A review of the record in this case raises some question as to the exact nature and etiology of the disabilities at issue. In that regard, service treatment records show multiple entries regarding a diagnosis and/or treatment for problems with the Veteran's back, shoulders, and arms. Additionally noted are various complaints of sinusitis, and problems with the Veteran's feet. While as noted above, certain periods of the Veteran's active service are at this time verified, other periods, in particular, periods of active or inactive duty for training, remain unverified. This is particularly troublesome given the fact that, based on the evidence of record, the Veteran had more than 20 years of combined service in the United States Army National Guard of Puerto Rico. Significantly, without verification of the Veteran's various periods of active service, it is impossible for the Board to determine whether the disabilities at issue are in some way related to those periods of duty. Accordingly, further development of the evidence will be undertaken prior to a final adjudication of the Veteran's claims. Regarding the Veteran's claimed disability of the lower back, the Board observes that, following a VA medical examination in January 2009, the Veteran received a diagnosis of spinal canal stenosis of the lumbosacral spine secondary to hypertrophic changes of the posterior elements resulting in posterolateral thecal compression with accompanying moderate central spinal canal stenosis at the level of the 4th and 5th lumbar vertebrae secondary to central disc protrusion and multilevel disc bulges in the region from the 1st to the 3rd and 4th lumbar vertebrae. Given that this diagnosis was provided within the first year following the Veteran's discharge from service, there arises the question of whether the aforementioned "hypertrophic changes" are representative of the presence of osteoarthritis, thereby triggering the regulatory one-year presumption for that particular disability. The Board further notes that, while in an addendum to the aforementioned VA examination in August 2009, the examiner indicated that the Veteran's low back disability was less likely than not etiologically related to his period of active service, that opinion appears to have been premised in large part upon the fact that there was evidence of a "low back condition" in 1998, thereby triggering the question of whether a preexisting low back disability was aggravated during the Veteran's second or third periods of active military service. Regarding the Veteran's claimed arm and shoulder disabilities, the Board notes that, in July and August 2007, during the Veteran's third period of active military service, he voiced multiple complaints of arm and/or shoulder problems. While it is true that, at the time of a VA examination in January 2009, musculoskeletal evaluations of the Veteran's arm were described as "negative," radiographic studies conducted at that time showed evidence of soft tissue calcifications adjacent to the medial aspect of the paroxysmal shaft of the right humeral bone. Such findings raise some question as to whether the Veteran does, in fact, currently suffer from chronic disability of his arms and/or shoulders. Regarding the Veteran's claimed sinus disability, the Board notes that, in May 1991 and February 2002, the Veteran was heard to complain of various problems with his sinuses. While it is true that, on both of those occasions, there was no evidence of any chronic pathology of the sinuses, the Veteran has yet to undergo a VA examination for the purpose of determining whether he currently suffers from chronic sinus pathology. Finally, the Board observes that, in correspondence from the Social Security Administration dated in August 2010, it was noted that the Veteran was entitled to monthly disability benefits beginning in November 2009. Significantly, where (as in this case), VA has actual notice that the Veteran is receiving disability benefits from the Social Security Administration, and such information is arguably relevant, the duty to assist requires VA to obtain a copy of the decision and any supporting medical records upon which the award was based. See Murincsak v. Derwinski, 2 Vet. App. 263 (1992); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Accordingly, in light of the aforementioned, the case is REMANDED to the AMC/RO for the following actions: 1. The AMC/RO should contact the appropriate service department and/or record storage facility, to include the National Personnel Records Center, and any appropriate facility of the United States Army National Guard, as well as the Defense Finance Accounting Service, with a request that they verify each and every period of the Veteran's service/duty, to include a classification as to whether the service was active duty, active duty for training, and/or inactive duty for training. Should it become necessary to contact the Defense Finance Accounting Service to secure this information, that agency must review the various pay accounts to determine the account from which the Veteran was paid for each period of service. (I.e., what service periods were paid from an account designated to pay for inactive duty service; what service periods were paid from an account designated to pay for active duty for training, etc.). If the AMC/RO cannot locate these federal records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The Veteran must then be given an opportunity to respond. 2. The AMC/RO should then contact the Social Security Administration with a request that they provide a copy of the decision concerning the Veteran's claim for Social Security disability benefits. Any medical records utilized in the award of Social Security benefits should likewise be requested. Once obtained, all such information and records should be made a part of the Veteran's claims folder. All attempts to obtain the records should be documented in the claims folder. 3. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to March 2012, the date of the most recent evidence of record, should then be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 4. The Veteran should then be afforded appropriate VA examinations in order to more accurately determine the exact nature and etiology of his claimed bilateral shoulder, bilateral arm, bilateral ankle, low back, and sinus disabilities. The Veteran is hereby notified that it is his responsibility to report for the examinations, and to cooperate in the development of his claims. The Veteran is further to be advised that the consequences for failure to report for a VA examination without good cause may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the orthopedic-type examination, the examiner should offer an opinion as to whether the diagnosis noted following a VA examination of the Veteran's back in January 2009 was consistent with the presence of osteoarthritis in the Veteran's lumbosacral spine. The examiner should, additionally, specifically comment as to whether any low back pathology noted at least as likely as not had its origin during, or is in some way the result of, the Veteran's period or periods of active military service. Should it be determined that the Veteran's low back pathology is not, in fact, the direct result of an incident or incidents of service, an additional opinion is requested as to whether any preexisting low back disability clearly and unmistakably underwent a clinically identifiable increase in severity beyond natural progress during one of the Veteran's period or periods of active military service. Finally, the orthopedic examiner should offer an opinion as to whether the Veteran currently suffers from chronic, clinically identifiable pathology of one or both shoulders, one or both arms, and one or both ankles. Should it be determined that the Veteran does, in fact, suffer from such chronic pathology, an additional opinion is requested as to whether such pathology at least as likely as not had its origin during, or is in some way the result of, the Veteran's period or periods of active military service. Following completion of the otolaryngologic-type examination, the examiner should offer an opinion as to whether the Veteran currently suffers from chronic, clinically identifiable pathology of the sinuses. Should it be determined that the Veteran does, in fact, suffer from such chronic pathology, an additional opinion is requested regarding whether the pathology in question at least as likely as not had its origin during, or is some way the result of, the Veteran's period or periods of active military service. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder must be made available to and reviewed by the examiners prior to completion of their examinations. In addition, the examiners must specify in their reports that the claims file and Virtual VA records have been reviewed. 5. The AMC/RO should then review the examination reports to ensure that they are in complete compliance with the directives of this REMAND, and that the examiners have documented their consideration of all records contained in Virtual VA. If the reports are deficient in any manner, the AMC/RO must implement corrective procedures. 6. The AMC/RO should then readjudicate the Veteran's claims for service connection for the disabilities in question. Should the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claims for benefits since the issuance of a Statement of the Case (SOC) in May 2010. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ MICHAEL D. LYON 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).