Citation Nr: 1338294 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 08-11 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an upper back and shoulders disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active military duty from February 1969 to February 1971 and from March 1971 to February 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2012, the Board remanded the case for further development. 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 While the Board regrets the delay in deciding the claim remaining on appeal, the Board finds that additional development is required to provide the Veteran with another VA examination and medical opinion after obtaining additional private and VA treatment records. The Veteran was afforded a VA cervical spine and shoulders examination in March 2012. Regarding the shoulders, the examiner concluded that the Veteran did not have a current shoulder disability. However, physical examination apparently revealed functional impairment manifested by additional limitation in range of motion of the shoulder and arm following repetitive-use testing and pain on movement, as well as pain on palpation and guarding bilaterally. The examination report also cited a normal shoulder x-ray study and a cervical spine x-ray revealing "multilevel cervical spondylosis." Unfortunately, copies of the x-ray reports are not associated with the examination report or the claims file, and it is unclear whether either study was performed in conjunction with the March 2012 examination, or whether the cervical spine study was summarizing a July 1997 private cervical spine x-ray study. With respect to the requested medical opinion as to whether a current upper back and shoulders disability was incurred in or related to military service, the Board finds that an additional medical opinion is required because the examiner's rationale for the unfavorable opinion consists merely of a recitation of various records in the claims file without any discussion or explanation of those records to support the conclusion. Accordingly, the RO/AMC should associate any VA cervical spine and shoulder x-ray studies with the claims file, except the June 1997 private cervical spine x-ray report that is included among VA treatment records. The RO/AMC should also arrange for the Veteran to undergo a VA orthopedic examination to determine whether the Veteran has a current shoulder disability and to provide a medical opinion as to whether an upper back/cervical spine and shoulders disability was incurred in or caused by military service. As noted in the prior remand, the Veteran contends that he has a current upper back and shoulders disability due to carrying a back pack weighing over 100 pounds, including while in combat. He explained that he just did his job and never complained, but now has pain and arthritis from his strenuous military duties. The Board notes that the Veteran served two tours in Vietnam and received the Purple Heart and Combat Infantry Badge during the early part of his military career. Service treatment records are silent for complaints, findings, evaluation, or treatment for cervical spine, upper back, or shoulder problems. In reports of medical history dated in March 1971, September 1977, January 1984, June 1987, and December 1990, the Veteran consistently denied currently or ever having a painful or "trick" shoulder. Service treatment records do document complaints, treatment, and hospitalization for chronic low back pain since 1985. In a June 1987 medical history report, he endorsed recurrent back pain, and the examining physician elaborated that the Veteran had back pain on and off since 1985. The Veteran also reported recurrent back pain on his December 1990 retirement medical history report, and the examiner indicated that the Veteran had degenerative joint disease of the low back. On retirement examination in December 1990, clinical evaluation of the spine and upper extremities was reported as normal with defects identified as degenerative disc disease of the lumbar spine by history. Service connection has been established for degenerative disc disease of the lumbosacral spine since March 1, 1991. Among post-service private treatment records from several providers dated from July 1992 to April 2006, the earliest subjective report pertinent to the upper back appears to be in June 1997 from Meridian Naval Air Station (NAS). The Veteran described upper arm/forearm numbness, left worse than right, worse at night and after increased activity. He denied a history of cervical trauma. The impression was possible radiculopathy. The impression of a July 1997 cervical spine x-ray was spondolitic [sic] changes. During a July 2006 VA primary care visit, the Veteran described numbness to both arms and to the left hand, feeling like there was a heavy pressure across his shoulders. He stated that he had had these symptoms for about ten years and they bothered him more as he got older. Musculoskeletal examination revealed no gross abnormalities. A review of VA treatment records and a March 2011 VA PTSD examination report reflects that the Veteran was in a motor vehicle accident in March 2010 (several years after submitting his current claim for service connection) where his car rolled over four times and that he was on medical leave from work due to the accident. A March 2010 VA treatment record reflects that the Veteran complained of low back pain and shoulder pain, and interventions were listed as "low back pain/shoulder pain (MVA), presently seeing Dr. Hensleigh and will continue treatment with her until he is released." Treatment records from K. Hensleigh, M.D., from Choctaw Urgent Care Center dated from August 2005 to April 2006 are already associated with the claims file. However, as the cited treatment by Dr. Hensleigh for shoulder pain may be relevant to the pending claim and records prior to August 2005 and prior to the March 2010 car accident may help to substantiate the claim, a remand is required to obtain those records. The Veteran should be advised to submit any ongoing treatment records pertinent to the claim for an upper back (cervical spine) and shoulders disability from K. Hensleigh, M.D., dated prior to August 2005, and from April 2006 to the present, or authorize the RO/AMC to obtain them on his behalf. Finally, the Board notes that an April 2012 VA record reflects that the Veteran consented to a electromyography (EMG) and/or nerve conduction study (NCS) procedure on his upper extremities. The RO/AMC should obtain and associate with the claims file the report of the April 2012 EMG/NCS study and any ongoing treatment records pertinent to the upper back/cervical spine and shoulders from the Jackson VA Medical Center (VAMC) dated from February 2012 to the present, from the Tuscaloosa VAMC dated from March 2011 to the present, and from the Tuskegee VAMC dated from June 2008 to the present. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorization and information from the Veteran, the RO/AMC should attempt to obtain and associate with the claims file the following records that may be pertinent to the claim for an upper back/cervical spine and shoulders disability: (a) any ongoing records of evaluation and/or treatment for an upper back/cervical spine and shoulders disability from K. Hensleigh, M.D., dated prior to August 2005, and from April 2006 to the present; (b) any VA x-ray reports of the cervical spine and shoulders; (c) the report of the April 2012 VA EMG/NCS study; (d) treatment records from the Jackson VAMC dated from February 2012 to the present; (e) treatment records from the Tuscaloosa VAMC dated from March 2011 to the present; and (f) treatment records from the Tuskegee VAMC dated from June 2008 to the present. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran or determines that any records are unavailable, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard to allow him the opportunity to obtain and submit those records for VA review. 2. After completion of the above to the extent possible, the RO/AMC should schedule the Veteran for an orthopedic examination by an appropriate VA examiner to determine whether the Veteran has a current disability of the shoulders and to provide a medical opinion regarding the claimed upper back and shoulders disability. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the report of examination should note review of the claims file. All necessary special studies or diagnostic tests should be accomplished, and the reports of such must be associated with the examination report. The examiner should consider the Veteran's contentions regarding the cause and onset of his claimed disability, including that he has a current upper back and shoulders disability related to carrying a back pack weighing over 100 pounds during military service, including during combat in the early part of his military career. The examiner must identify all upper back/cervical spine and shoulder disabilities found on examination. For each diagnosed upper back/cervical spine and/or shoulder disability, the examiner should indicate whether it is as likely as not (50 percent probability or greater) incurred in or otherwise medically related to the Veteran's active service. The examination report should include the complete rationale for all opinions expressed. 3. After completion of the above, the RO/AMC should adjudicate the claim of entitlement to service connection for an upper back and shoulders disorder. If the benefit sought is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant 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. 2013). _________________________________________________ J. A. MARKEY 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).