Citation Nr: 1332855 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 04-44 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a left shoulder disability, to include residuals of an injury to the left acromioclavicular joint. 2. Entitlement to service connection for cervical spine disability, including degenerative disc and joint disease. 3. Entitlement to service connection for shingles (herpes zoster), to include as secondary to service-connected low back disability and/or service-connected sciatic neuropathy of the right lower extremity. ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to August 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. When this case was most recently before the Board in June 2013, it was decided in part and remanded in part. It is now before the Board for further appellate action. 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 Under the directives of the June 2013 remand, the AMC attempted to reconstruct the Veteran's claims file by requesting searches of the Records Management Center and the Oakland Regional Office. However, the AMC did not attempt to obtain VA treatment records. As indicated in the October 2013 Board remand, a November 1999 VA (QTC) examination of the left shoulder is not included in the claims file. There is no indication that the AMC has attempted to obtain any VA records since the Board's October 2012 remand which specifically directed the AMC to search for VA records. VA has a duty to obtain all pertinent VA treatment records. 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). For these reasons, the Board finds that the case should be remanded once again for the AMC to have the opportunity to obtain all pertinent VA treatment records. In August 2013, the Veteran submitted a December 2005 treatment record from the Air Force Clinic to the Board. The December 2005 treatment record notes a diagnosis of shingles and the physician stated: "suspect due to recent steroid use". The record further indicates that the Veteran had recent neurosurgery for chronic back pain and was status post use of prednisone, apparently for the Veteran's back surgery. Although the evidence shows a possible relationship between medication taken for his service-connected degenerative disc disease and the diagnosis of shingles, the Board finds that the statement "suspect due to recent steroid use" is speculative in nature. Further development should be undertaken, including obtaining a VA examination for the Veteran's claimed shingles residuals to determine whether the Veteran has residuals of shingles and whether there is a relationship between his medication used to treat his service-connected back disability and his shingles diagnosis. To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves); see also Romanowski v. Shinseki, WL 3455655 (Jul. 10, 2013) (holding that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.) Here, a VA examiner should provide an opinion as to whether the Veteran had a diagnosis of shingles or residuals at the time his claim was file or since that time. Furthermore, additional evidence pertinent to the issues on appeal was sent by the Veteran to the Board subsequent to the August 2013 supplemental statement of the case. As the Veteran has not waived agency of original jurisdiction consideration of the new evidence, the originating agency must be given the opportunity to review this evidence before the Board can enter a decision. 38 C.F.R. § 20.1304(c) (2013). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter telling him that the AMC/RO is attempting to obtain all VA treatment records, including a November 1999 VA (QTC) examination. If he has any VA records, including this 1999 examination report, ask him to forward the documents to the AMC/RO. 2. Obtain all VA treatment records, including the November 1999 VA (QTC) examination. All records and information obtained should be associated with the claims file. If records are not located, it should be certified for the record that the records do not exist or that further efforts to obtain this records would be futile. 3. After the actions set out above have been completed to the extent possible, schedule the Veteran for an examination by an appropriately qualified VA health care professional. The examiner must review the entire claims folder, all relevant records in the Veteran's Virtual VA e-folder, and any records obtained in conjunction with this remand; such a review must be noted in the examination report. The examiner is asked to answer the following questions: (a) Does the Veteran have a current diagnosis of shingles or any residuals of shingles since he filed his claim in June 2006 or shortly before that time? Please comment on the December 2005 treatment record. (b) Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran had or has shingles which is etiologically related to the Veteran's period of service? (c) Is it at least as likely as not that the Veteran's shingles diagnosis or residuals were caused by or aggravated (i.e., worsened in severity beyond the natural progress) by a service-connected disability? Specifically, was the Veteran's shingles diagnosis caused by or aggravated by medication treatment (prednisone) he was taking for his back disability. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's shingles found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. Please comment on the December 2005 treatment record which notes that shingles was "suspect due to recent steroid use." The record also notes that the Veteran was status post two courses of prednisone treatment due to recent neurosurgery for chronic back pain. A complete rationale for the opinion proffered must be provided; if an opinion cannot be made without resort to speculation, a sufficient rationale and supporting explanation needs to be provided that addresses such matters as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and whether the question is so outside the norm of practice that it is really impossible for the examiner to use his or her medical expertise and training to render an opinion. 4. After obtaining any VA treatment records, including the November 1999 VA (QTC) examination for the left shoulder, the claims file should returned to the VA health care professional who provided the most recent July 2013 addendum for the left shoulder and cervical spine disorder. If, but only if, the VA health care professional deems it necessary to conduct further physical examination, then such an examination should be scheduled. The physician should review the VA treatment records obtained including the 1999 QTC examination and provide an opinion (use the following wording): (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's tendonitis of the left shoulder, diagnosed in April 2004, began during service or is otherwise linked to any incident of service, to include as x-ray showing very mild widening of the left AC joint? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed degenerative disc disease of the cervical spine began during service or is otherwise linked to any incident of service, to include the in-service diagnosis of facet dysfunction of the cervical spine? In providing the opinions, the examiner is advised that the Veteran is competent to report injuries and symptoms in service, regardless of the contents of the service treatment records, and that the Veteran's reports must be considered. To that extent, the examiner should consider the Veteran's August 2013 statement that he went to physical therapy for his shoulder and neck in the 1990's at Fort Riley Kansas. The rationale for any opinions should also be provided. 5. The Veteran is to be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, without good cause, to so report. See 38 C.F.R. § 3.655 (2013). 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. Following the completion of the above-requested development, readjudicate the Veteran's claims. If the claims remain denied, he must be provided a supplemental statement of the case and an opportunity to respond. Thereafter, the case should be returned to the Board, if otherwise in order. 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). (CONTINUED ON NEXT PAGE) 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 A. PAPPAS 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) (2013).