Citation Nr: 1411368 Decision Date: 03/19/14 Archive Date: 04/02/14 DOCKET NO. 12-10 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE 1. Entitlement to service connection for left upper extremity mononeuropathy, to include as secondary to service-connected residuals of left arm fracture. 2. Entitlement to service connection for left upper extremity myositis ossificans, to include as secondary to service-connected residuals of left arm fracture. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Reeder, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1960 through July 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in addition to the paper claims file in this case, an electronic VA paperless claims file has also been associated with the Veteran's claim, and has been reviewed. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. 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 Veteran seeks service connection for left upper extremity mononeuropathy and left myositis ossificans, to include as secondary to service-connected residuals of a left arm fracture. In an August 2011 VA examination, the examiner opined that the Veteran's left ulnar nerve mononeuropathy and myositis ossificans were less likely than not proximately due to or the result of the Veteran's service-connected condition. He stated the nerve damage was most likely the result of a pre-existing elbow injury and that there was no evidence of nerve damage during service. He also stated that the myositis ossificans probably occurred when the Veteran injured his elbow prior to service or when that injury was surgically repaired. However, the examiner did not address any aggravation of those conditions in service. However, no opinion was provided regarding whether the Veteran's service-connected left arm condition might have aggravated his claimed left ulnar nerve mononeuropathy and myositis ossificans. Secondary service connection may be established when a service-connected disability aggravates a nonservice-connected disability. Specifically, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Based on the above, the Board finds that an additional opinion is needed. VA treatment records dating to July 2011 have been associated with the claims file, but relevant ongoing medical records should also be requested. 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). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records for the Veteran from the Huntington, West Virginia VA Medical Center and any associated outpatient clinic dated from July 2011 to the present and associate them with the claims file. All attempts to obtain these records must be documented in the claims file. 2. Return the claims file to the examiner who provided the August 2011 opinion or the examiner who provided the September 2011 opinion and October 2011 addendum, if available, to obtain an additional medical opinion. If the examiner determines that a new examination is necessary to respond to the questions, one should be scheduled. If the original examiners are not available, the claims file should be forwarded to another examiner to obtain the requested opinion. The examiner should then respond to the following: It at least as likely as not (50 percent probability or more) that the Veteran's left upper extremity mononeuropathy and/or myositis ossificans was aggravated by the service-connected residuals, left arm fracture? Aggravation is defined as a permanent worsening beyond the natural progression of the disability. A complete rationale must be provided for any opinion offered. 3. After completing the requested actions, and any additional action deemed warranted, the RO/AMC should readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if 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). 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).