Citation Nr: 1332556 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-23 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a neck disability. 3. Entitlement to service connection for a left foot disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from August 1972 to August 1975. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in his May 2010 VA Form 9, the Veteran requested a hearing before a member of the Board. In September 2011, he withdrew such request. 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 seeks entitlement to service connection for left shoulder, neck and left foot disabilities secondary to a helicopter crash while temporarily assigned to duty for 90 days to a medical evaluation unit in Da Nang, Vietnam. The Veteran's DD Form 214 and service personnel records show that his military occupational specialty was aviation boatswain mate. He had foreign/sea service for 6 months and 15 days from December 1972 to June 1973. He reported to service aboard the USS Oriskany (CVA-34) with Attack Squadron 215 in December 1972. There are no decorations, awards or badges indicative of combat or service in Vietnam. Service treatment records include an August 1972 enlistment report of medical examination wherein the neck, feet and spine were found to be normal on clinical evaluation. The upper extremities were abnormal on clinical evaluation, and it was noted that he had suffered amputation of the distal one third of his left middle finger. His enlistment report of medical history showed no complaint of a painful or "trick" shoulder or elbow, recurrent back pain, foot trouble or neck pain; it was noted he had a history of a left clavicle fracture prior to service. Service treatment records also include September 1972 reports of the Veteran's complaint of his feet bothering him. Physical examination revealed a possible corn of the fifth toe (i.e., little or pinky toe) of the left foot. On August 1975 service discharge examination, his neck, spine, feet and upper extremities were normal on clinical evaluation. He denied complaints of painful or "trick" shoulder or elbow, recurrent back pain, or foot trouble, and there were no complaints of neck pain. On September 1976 reserve enlistment report of medical history, the Veteran denied complaints of painful or "trick" shoulder or elbow, or recurrent back pain, and there were no complaints of neck pain. He did complain of foot trouble, and it was noted that he had a growth in his left foot great toe. In July 2008 correspondence, the Veteran stated that he was temporarily assigned to a medical evaluation unit in Da Nang, Vietnam, due to his previous emergency medical training. While serving as a medic on a helicopter, it came under small arms fire and it had a controlled crash landing and he escaped with only minor cuts and bruises. However, about four weeks later, in another helicopter, it also came under small arms fire and the helicopter crashed to the ground. He stated he dislocated his left shoulder, broke two bones in his left foot, and received multiple scrapes and bruises. All of the crew, except the pilot, was able to escape the wreckage. He related that he assessed the crew for injuries, including the pilot, who he assessed had "injuries . . . incompatible to life . . ." He indicated that he departed Da Nang in April 1973 and returned to the USS Oriskany immediately thereafter. In a September 2009 lay statement by D.G., identified as a fellow service member of the Veteran in Attack Squadron 215 aboard the USS Oriskany, corroborated the Veteran's account that he was temporarily assigned to Da Nang, Vietnam, as a medivac. It was further stated that the appellant showed him photographs of the helicopter he was in after it was shot down and crash landed. Deployment history of the USS Oriskany shows that from June 1972 to March 1973, the ship was deployed to the Vietnam War. The deployment history from August 1963 to March 1964 shows that the ship was in-port in Japan and China. There is no evidence of where the ship was ported during the relevant period from December 1972 to April 1973. History of Attack Squadron 215 shows that the squadron was deployed aboard CVA-34 (i.e., USS Oriskany) from June 1972 to March 1973 to the Western Pacific/Vietnam. In this case, as there is evidence that Attack Squadron 215 was deployed aboard the USS Oriskany to the Western Pacific/Vietnam from June 1972 to March 1973, service personnel records show that the Veteran reported to the USS Oriskany with Attack Squadron 215 in December 1972, and the Veteran reports that he was temporarily assigned to Da Nang, Vietnam, from January 1973 to March/April 1973, the Board finds that remand of the case for additional development is necessary. Specifically, the claims file does not contain any photographs of the alleged helicopter crash that D.G. indicated he was shown by the appellant, and the Veteran has not provided sufficient verifiable information to identify the pilot that purportedly died in the crash. In addition, the service personnel records do not contain any evidence of a temporary duty of assignment to Vietnam from January to March/April 1973 as reported by the appellant. Further, the available deployment history of the USS Oriskany does not include evidence of where the ship was located/ported from December 1972 to April 1973. Development to secure this evidence should be accomplished. See 38 C.F.R. § 3.159(c)(2) (VA will undertake reasonable efforts to obtain relevant records in the custody of a Federal department or agency). The evidence of record also shows that the Veteran underwent excision of a bone spur on the medial aspect of his left foot great toe in 1984. See December 2004 Dr. L.R. Rousseau private treatment report. Notably, there is no operative report of such surgery in 1984, or records of treatment leading up to the surgery. As the operative report and treatment records leading up to the surgery may provide insight as to the cause of the injury and the possible etiology of the Veteran's left foot disability, they are pertinent to the matter at hand and must be secured on remand. Finally, in light of the Veteran's contentions and D.G.'s lay statement, the Board finds that on remand he should be afforded a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge of and/or were contemporaneously informed of his temporary duty assignment to Vietnam and of his left shoulder, neck and left foot problems, during and/or since service. The Veteran should also be requested to provide any photographs of the helicopter crash during service that are in his possession (as indicated in the September 2009 lay statement by D.G.), as well as any identifying information regarding the pilot that died in the helicopter crash in Vietnam. He should be provided an appropriate amount of time to submit this lay evidence. 2. Contact the National Personnel Records Center or any other appropriate service department offices, for the following: a) Records of his assignments, whether permanent or temporary duty stations, all travel orders, travel vouchers and all temporary duty assignment orders, including to the Republic of Vietnam from January to April 1973. b) Obtain the deployment history of the USS Oriskany for the period from December 1972 to April 1973. c) Records of any casualties from January to April 1973 in the Republic of Vietnam from a helicopter crash. Efforts to obtain the foregoing records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought and this should be documented for the record. 3. Ask the Veteran to identify all medical providers who treated him for left foot problems since service, specifically including those who provided treatment leading up to and including a 1984 left foot surgery. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already associated with the claims file. 4. Arrange for the Veteran to be examined by an appropriate VA examiner to determine whether his claimed left shoulder, neck and left foot disabilities are at least as likely as not related to his service, to include from a helicopter crash in Vietnam. All necessary tests should be conducted and all findings and conclusions should be set forth in a legible report. 5. Then readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case and given a reasonable opportunity to respond. 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). 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). _________________________________________________ STEVEN D. REISS 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).