Citation Nr: 1338284 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 13-01 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a right humerus disability. ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1959 to May 1962. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which, in part, denied the Veteran's claim of entitlement to service connection for a right humerus disability. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims. 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 Board finds that additional development is warranted in this case before a decision may be rendered. The Veteran essentially contends that his current right humerus disability is related to service. He indicates that he injured his right humerus when he had a hard landing on a frozen gravel bar at Fort Greely, Alaska in the early 1960s for the HALO project. The Veteran was afforded an examination for his claimed disability in August 2011. In noting a healed fracture of the right humerus with residual deformity of the right humerus, the examiner opined that it was less likely than not that it was incurred in or caused by an in-service injury or event. The examiner cited to the Veteran's history that the injury occurred after active service in 1968 when he was in the Reserves and did not occur during service. The Board finds this examination report is insufficient. The examiner failed to take into account the Veteran's assertions of in-service incurrence and rather focused on the Veteran's post-service accident. In response to the VA examination report, the Veteran stated that while he was involved in a civilian aircraft accident and suffered multiple injuries, he did not injure his right humerus at that time. The Veteran is competent to state the manner in which he injured his right humerus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Furthermore, the service treatment records confirm that in November 1961 the Veteran struck his right elbow on a D2 landing and received four stitches. He was granted service connection for a right elbow disability in connection with this incident. Therefore, on remand, the Veteran must be provided another examination to determine the nature and etiology of any current right humerus disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an examination to ascertain the nature and etiology of his current right humerus disability. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must reflect that the claims file was reviewed in conjunction with the examination. The examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current right humerus disability is related to service, to include the November 1961 documented injury to the right elbow during service. In rendering the requested opinion, the examiner must specifically acknowledge and discuss the Veteran's competent and credible lay evidence of in-service injury. See Dalton v. Nicholson, 21 Vet. App. 23 (noting that an examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner explain why an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran 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). _________________________________________________ BETHANY L. BUCK 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).