Citation Nr: 1410188 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-18 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for left pectoralis major muscle tear. 2. Entitlement to service connection for a right ankle disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from July 1998 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Regional Office (RO) in Cleveland, Regional Office. The appeal was later transferred to the RO in Roanoke, Virginia. The Veteran testified before the undersigned Acting Veterans Law Judge in May 2011. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 After a careful review of the Veteran's claims file, the Board finds that a remand is warranted. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran testified that he tore his left pectoralis muscle during service when he was doing pushups. However, the evidence of record indicates that the Veteran tore his left pectoralis muscle in September 1998, after the Veteran's discharge from his military service. In addition, the Veteran testified that he hurt his ankle during his military service by falling off of the monkey bars. However, the first medical evidence of record of a diagnosis in May 2006. The evidence of record currently lacks competent evidence that links the currently diagnosed disabilities to the Veteran's contended injuries during his active service from July to August 1998. The Board finds prior to adjudication upon the merits a remand is needed in order to obtain a medical opinion that addresses the questions raised by this appeal. An examination should be obtained when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service or service-connected disability, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board finds that the Veteran should be afforded VA examinations to determine the current nature and etiology of the Veteran's left pectoralis muscle and right ankle conditions; to include if they are at least likely as not related to military service. On examination the VA examiner should solicit from the Veteran the date and circumstances of injuries, treatment, and diagnosis to his left pectoralis major muscle tear and right ankle condition. The Veteran's service treatment records are not of record; the Veteran was notified of the steps taken in a March 2010 letter. The page in the service treatment record envelope is from treatment after his active service. Thus, the Board finds that the AMC should inform the Veteran that he may submit any buddy statements, service treatment records, or medical evidence that indicates that he tore his pectoralis muscle during his service. The letter must inform him of the efforts VA made to obtain the records and advise him that VA will decide the claim based on the evidence of record unless he submits the records - notify him that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159. Also advise him that alternative forms of evidence can be developed to substantiate the claim, including, but not limited to "buddy certificates" and letters. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992); see Washington v. Nicholson, 19 Vet.App. 362 (2005) (remanding claim to the Board to address VA's duty to "exercise greater diligence in assisting the appellant with the development of evidence"). Lastly, prior to any VA examination, attempts should be made to obtain any outstanding records of pertinent medical treatment. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran by letter and request that he provide sufficient information, and if necessary authorization, to enable the AMC to obtain any additional pertinent treatment records not currently of record. Based on the Veteran's response, the AMC should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the AMC should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe the further action to be taken. 2. Send the Veteran a letter informing him of the efforts VA made to obtain his service treatment records and advise him that VA will decide the claim based on the evidence of record unless he submits the records - notify him that he is ultimately responsible for providing the evidence. Also advise him that alternative forms of evidence can be developed to substantiate the claim, including, but not limited to "buddy certificates" and letters. 3. After the development is paragraphs (1)-(2) is complete, schedule the Veteran for an appropriate VA examination to ascertain the nature and likely etiology of his left pectoralis major muscle tear and a right ankle disability. The entire claims file must be made available to the examiner and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner must first solicit from the Veteran the date and circumstances of injuries, treatment, and diagnosis to his left pectoralis major muscle tear and right ankle condition; this must be documented in the VA examination report(s). The VA examiner must answer all of the following questions: (A) Does the Veteran have current diagnosis of left pectoralis major muscle tear (or residual disability related to prior tear) and/or right ankle condition? (B) For each diagnosed disability, the VA examiner must opine if the Veteran's diagnosis is at least likely as not (probability of 50 percent or greater) related to the Veteran's military service? The Veteran's dates of active military service are July 22, 1998, to August 18, 1998. In doing so, the examiner must review the Veteran's reported history as to the onset and continuity of symptomatology. Any opinions expressed must be accompanied by a complete rationale. If an opinion cannot be given without resorting to mere speculation than the VA examiner must state so and further provide a reason for such conclusion. 4. Review the claims file to ensure that all the foregoing requested development is completed, and, thereafter, arrange for any additional development indicated. The AMC should then readjudicate the claims on appeal. If any benefit sought remains denied, the AMC should issue an appropriate Supplemental Statement of the Case and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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. 2013). _________________________________________________ Nathaniel J. Doan Acting 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).