Citation Nr: 1418206 Decision Date: 04/23/14 Archive Date: 05/02/14 DOCKET NO. 11-23 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Appellant served on active duty from March 1977 to March 1980, and in the Army National Guard from 1981 to 2000. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed. Separately, in an August 2013 rating decision, the RO denied the appellant's claims for service connection for an acquired psychiatric disorder and a right knee condition. According to the electronic Veterans Appeals Control and Locator System (VACOLS), the appellant filed a notice of disagreement (NOD) with respect to that decision. In November 2013, the RO informed him that a Decision Review Officer (DRO) would review the materials in his claims folder and might request additional evidence as a result. If the disagreement could not be resolved by the DRO, a statement of the case would issue. As the RO has acknowledged receipt of the NOD and additional action is pending, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action is pending, Manlincon v. West is not applicable in this case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Appellant contends that his current cervical spine disorder and left shoulder disorder are related to an incident when he fell out of a helicopter while serving in the Army National Guard. See e.g., Appellant statements dated in December 2009 and March 2010. This incident may have occurred in 1985 or 1986. Id.; see August 2009 VA treatment record (Appellant reported he fell out of the helicopter in approximately 1986) and the November 2009 claim. The Appellant also contends that his current right ankle disability is related to an injury incurred during active duty for training in June 1996. See e.g., Appellant statement in March 2010 and STRs. In October 2013, the Appellant, though his representative, submitted service treatment records that show that the Appellant incurred a right ankle injury during an assault exercise in June 1996 during active duty for training in the Army National Guard. See June 1996 Individual Sick Slip. The Appellant was treated in June 1996 and September 1996. See service treatment records. These facts are pertinent to the claim on appeal and raise the question of whether the Appellant's current right ankle disability is related to the right ankle injury that was incurred in active duty for training. Therefore, VA examination is warranted to determine the nature and etiology of a right ankle disability. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Regarding the cervical spine disorder and left shoulder disorder, the record includes no service treatment records or service personnel records to show that the Appellant incurred an injury after falling out of a helicopter while in active service. The RO has attempted to obtain service records from appropriate sources, to include the NPRC, RMC, and the PA National Guard Joint Force Headquarters. See e.g., May 2011 Formal Finding of Unavailability. However, the record shows that the RO did not request records from the Defense Finance and Accounting Service and the National Guard Bureau. In addition, while the Appellant was able to obtain some records from the U.S. Army Human Resources Command, it does not appear that the RO requested records from that facility. Moreover, the requests for records from the NPRC and RMC appeared to request records only from his period of active service from 1977 to 1980. Further, the Board notes that Dr. W. from Tri-State Health Care Chiropractors responded to requests for medical records pertaining to treatment of the Appellant's neck and left shoulder from 1983 to present with a notation that the Appellant had not been treated during the requested dates. However, there is no indication that the RO provided the Appellant with notice as to the unavailability of these records pursuant to 38 C.F.R. § 3.159(e). Therefore, the Appellant should be provided notice as is required under 38 C.F.R. § 3.159(e). A VA treatment record in June 2011 notes that the Appellant receives Social Security Disability benefits for his neck disability. These records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Provide notice to the Appellant pursuant to 38 C.F.R. § 3.159(e) regarding the unavailability of records from Dr. W. from Tri-State Health Care Chiropractors from 1983 to present. 2. Request copies of all of the Appellant's service treatment records and service personnel records for his Army National Guard service (1981 to 2000), to include from the following: a). the Appellant's National Guard unit (see RO's original request dated in January 2011 to the HQ Company in Mount Pleasant, PA, to which there was no reply); b). the U.S. Army Human Resources Command in St. Louis (as they were able to provide copies of the Appellant's OMPF to a congressional representative in October 2009); c). National Personnel Records Center and/or Records Management Center; and d). the National Guard Bureau and the Defense Finance and Accounting Service for dates of ACDUTRA and INACDUTRA by month, date and year for 1984 to 1987, 1996, and 1998. If any of these records are found to be unavailable, this should be specifically noted in the claims file. 3. Request, directly from the Social Security Administration, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. 4. Obtain VA treatment records from April 2013 to present. 5. If, after making reasonable efforts to obtain any outstanding non-Federal records the AMC is unable to secure same or if after continued efforts to obtain Federal records the AMC concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Appellant should be notified in accordance with 38 C.F.R. § 3.159(e). The Appellant must then be given an opportunity to respond. 6. Afterwards, if service personnel or service treatment records are received concerning the reported fall from a helicopter occurred during a period of active duty for training or a period inactive duty for training, then schedule the Appellant for a VA medical examination to determine the nature and etiology of (a) a cervical spine disability, and (b) a left shoulder disability. Make the claims file available to the examiner for review of the case. The examiner should review all records associated with the claims file, including the Appellant's service treatment records, post-service treatment records, and lay statements. The examiner is asked to note that this case review took place. The examiner is then asked to please provide opinions as to the following: a. the nature and diagnosis(es) of the Appellant's (a) cervical spine disability, and (b) left shoulder disability. b. is it at least as likely as not (probability of 50 percent) that any diagnosed disabilities are etiologically related to a disease or injury incurred during a period of National Guard ACDUTRA or an injury incurred during National Guard INACDUTRA, to include injuries resulting from a fall from a helicopter. Please provide a complete explanation for the opinion. A rationale must be offered for any opinion expressed. Please note 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. 7. Schedule the Appellant for a VA medical examination to determine the nature and etiology of a right ankle disability. Make the claims file available to the examiner for review of the case. The examiner should review all records associated with the claims file, including the Appellant's service treatment records, post-service treatment records, and lay statements. The examiner is asked to note that this case review took place. The examiner is then asked to please provide opinions as to the following: a. the nature and diagnosis(es) of the Appellant's right ankle disability. b. is it at least as likely as not (probability of 50 percent) that a right ankle disability is etiologically related to a disease or injury incurred or aggravated during a period of National Guard ACDUTRA or an injury incurred or aggravated during National Guard INACDUTRA, to include ankle injuries in 1996 and 1998. Please provide a complete explanation for the opinion. A rationale must be offered for any opinion expressed. Please note 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. 8. After completing the development and conducting any additional development that is deemed warranted, adjudicate the claims on appeal. If the benefit sought remains denied, furnish the Appellant and his representative a supplemental statement of the case and provide an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ S. S. TOTH 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).