Citation Nr: 1334113 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-22 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for a left subclavian shoulder/arm disorder. 2. Entitlement to service connection for cardiac arrest as secondary to a left subclavian shoulder/arm disorder. 3. Entitlement to service connection for a hernia disorder as secondary to a left subclavian shoulder/arm disorder. 4. Entitlement to service connection for paralyzed right hemi diaphragm disorder as secondary to a left subclavian shoulder/arm disorder. 5. Entitlement to service connection for a vagus nerve disorder with left vocal cord palsy as secondary to a left subclavian shoulder/arm disorder. REPRESENTATION Appellant represented by: Dennis L. Peterson, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from January 1962 to October 1964. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a February 2007 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Fargo, North Dakota. In November 2007, the Veteran testified during a Board video conference hearing before a Veterans Law Judge ("VLJ"). A transcript of the hearing has been associated with the Veteran's claims folder. The Board notes that the VLJ who conducted the video conference hearing is no longer with the Board. Under VA regulations, a claimant is entitled to have a final determination of his or her claim made by the VLJ who conducted the hearing. 38 C.F.R. § 20.707 (2012). By means of a March 2012 letter, the appellant was afforded the opportunity for a second hearing before the Board and was advised if a response was not received within 30 days, it would be assumed that he did not wish to be afforded another hearing. As the Veteran did not respond, the Board concludes that he does not wish another hearing before the Board. In May 2008, the Board remanded the case to the agency of original jurisdiction ("AOJ") for additional development. In July 2010, the Board issued a decision denying the Veteran's claims. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims ("Court"). In a November 2011 Memorandum Decision, the Court vacated the Board's decision and remanded the claims to the Board for compliance with the directives specified by the Court. In July 2012, the Board again remanded the claims for additional evidentiary development, specifically, to afford the Veteran another VA examination and opinion. Following a November 2012 examination, the RO issued a Supplemental Statement of the Case ("SSOC"), in which it continued to deny the claims. The claims folder has been returned to the Board for further appellate consideration. The record reflects that the appellant has submitted additional evidence to the Board in conjunction with this case, accompanied by a waiver of initial review of the evidence by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304 (2012). The Board accepts this evidence for inclusion in the record. The appeal is REMANDED to the Department of Veterans Affairs Regional Office ("RO") in Fargo, North Dakota. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. As noted above, in November 2012, the Veteran was afforded a VA examination in order to obtain another opinion as to the etiology of his left subclavian shoulder/arm disorder. Based on his evaluation of the Veteran and review of the evidence of record, the VA examiner concluded that it was less likely than not that the Veteran's left subclavian shoulder/arm disorder was caused by, or was otherwise related to his accident in service. The examiner noted that, among the evidence reviewed were several statements/letters from the Veteran's treating providers. He also noted that, although a July 1989 angiogram was referenced in several reports, the actual angiogram itself could not be located among the evidence of record. Following the VA examination, the Veteran submitted a May 2013 opinion letter from S. Baker, his treating Certified Family Nurse Practitioner for the past five years. In her statement, in which she positively linked the Veteran's left subclavian shoulder/arm disorder to active duty service, she noted that, "the records and documents clearly indicate [that the Veteran] had a subclavian steal syndrome at the time of his motor vehicle crash on July 10, 1989. This was conclusively identified with the angiogram performed that day when the staff identified a large discrepancy between the blood pressure readings in the right and left arms." In this regard, the Board observes that, although NP Baker referenced the findings of the July 1989 angiogram, it is unclear from her statement whether she actually reviewed the angiogram itself, or was merely reporting the results as they had been recounted several times in subsequent treatment reports of record. The Board further observes that, although NP Baker noted the date of the Veteran's motor vehicle accident as July 10, 1989, other treatment reports of record indicate that the accident occurred on July 5, 1989, the same day he was evaluated at the Dakota Hospital emergency room. See, e.g., letter from Dakota Clinic, November 1989. Accordingly, as it appears the July 1989 angiogram, which, in substantial part, formed the basis for NP Baker's opinion, is not of record, a remand is required to attempt to obtain this report (as well as any associated July 1989 emergency room treatment records from Dakota Hospital). In addition, if this report is obtained, another opinion should be obtained to determine whether the Veteran's left subclavian shoulder/arm disorder is the result of active duty service. Commentary should be provided as to the significance of the angiogram. With regard to the Veteran's claims of entitlement to service connection for cardiac arrest, hernia disorder, paralyzed right hemi diaphragm disorder, and vagus nerve disorder with left vocal cord palsy, each as secondary to a left subclavian shoulder/arm disorder, the Board notes that the Veterans Claims Assistance Act of 2000 ("VCAA"), Public Law No. 106-475, 114 Stat. 2096 (2000) requires that VA notify the claimant of any information needed to substantiate a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Review of the claims folder shows that, although the Veteran was provided with VCAA notice of the evidentiary requirements for perfecting a claim of service connection on a direct basis, he was never afforded notice of the evidence necessary for an award of service connection based on an already-service-connected disorder, i.e., secondary service connection. This information also was not provided following the initial adjudication of his claim in a Statement of the Case ("SOC") or Supplemental Statement of the Case ("SSOC"). As such, while the claims are on REMAND status, this information should be provided to the Veteran. Finally, because the additional service connection claims are inextricably intertwined with consideration for entitlement to service connection for a left subclavian shoulder/arm disorder, further adjudication with regard to those issues cannot be considered at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue)). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran a VCAA letter notifying him of the evidentiary requirements for substantiating a claim of entitlement to service connection based on an already-service-connected disability (i.e., secondary service connection). The Veteran should be given a reasonable amount of time to respond with additional evidence. 2. The RO/AMC should send the Veteran a release form(s) to allow it to obtain the emergency room treatment records from the Dakota Hospital, where he was treated following his July 1989 motor vehicle accident. In particular, the RO/AMC should request a copy of the angiogram performed at that time. Any treatment reports obtained should be associated with the record. Any negative response must also be noted in the claims folder. 3. Following completion of the above, if additional pertinent evidence is obtained, to include a 1989 angiogram, the Veteran's claims folder should be provided to a cardiologist for an opinion as to: a) Whether the Veteran's left subclavian shoulder/arm disorder is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), related to his active duty service, specifically, the claimed 1962 injury to his left arm/shoulder and chest rather than his post-service MVA. The complete claims folder must be made available to the examiner, and the examiner must note that the complete record (including the previous November 2009 and November 2012 VA examination reports, as well as the opinions from the Veteran's private providers) has been reviewed. The examiner should explain the significance, if any, of the 1989 and 1990 angiograms. b) Whether cardiac arrest, hernia disorder, paralyzed right hemi diaphragm disorder, and vagus nerve disorder with left vocal cord palsy were caused or permanently aggravated by his left subclavian shoulder/arm disorder. A complete rationale for any opinions expressed, as well as a discussion of the medical principles involved, must be provided. The clinician is also advised that the term "at least as likely as not" does not mean within the realm of 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 causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. If, for any reason, the clinician is unable to offer an opinion without resorting to speculation, this should be noted and thoroughly explained in the report, along with a complete rationale for such conclusion. 4. Thereafter, readjudicate the issues on appeal. If any of the benefits sought on appeal are not granted, the Veteran and his representative should be provided with an SSOC and afforded the opportunity to respond thereto. The case should then be returned to the Board, if in order, for further appellate process. 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). _________________________________________________ K. PARAKKAL 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).