Citation Nr: 1616067 Decision Date: 04/21/16 Archive Date: 05/04/16 DOCKET NO. 11-33 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to service connection for left ankle arthritis. 3. Entitlement to service connection for a bilateral shin disorder. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1990 to July 2010, including service in Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, as part of the Benefits Delivery at Discharge (BDD) program. The Board notes that the purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. In order to facilitate the quick processing of claims under the BDD program, the Virtual VA (VVA) paperless claims processing system is utilized. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claims for benefits. The Board notes that, in addition to the VVA paperless file, there is a separate electronic (Veterans Benefits Management System (VBMS)) file associated with the Veteran's claims. The Veteran's claims for service connection for right ankle arthritis and left lower extremity deep vein thrombosis (LLE DVT) were also denied in October 2010 and May 2011 rating decisions respectively. While the Veteran perfected an appeal as to both of those issues, in a February 2013 rating decision, the RO granted service connection for right ankle traumatic arthropathy and LLE DVT. As the February 2013 decision represents a full grant of the benefits sought with respect to these issues, these matters are not before the Board for consideration. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). In December 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record. At such time, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration 38 C.F.R. § 20.1304(c) (2015); he also waived consideration of other evidence submitted after the February 2013 supplemental statement of the case. In March 2016, the Veteran submitted further evidence related to his claims, but did not include a waiver of AOJ consideration. However, as his claims for service connection are being remanded, the AOJ will have the opportunity to consider such evidence in the readjudication of the claims. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND 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 2014); 38 C.F.R. § 3.159 (2015). The Board finds that a new VA examination is necessary in order to determine the nature and etiology of the Veteran's claimed right shoulder disorder, left ankle arthritis, and bilateral shin disorder. In this regard, the Veteran has alleged suffering from such disorders during service. Service treatment records document that the Veteran suffered a right shoulder acromioclavicular separation in August 1991, a left ankle sprain in May 1992, and routinely reported experiencing lower extremity and joint pain, including in June 2004 and January 2010 reports of medical history. A VA general medicine examination, including a physical examination, was conducted in February 2010. The examiner determined that there was no current pathology to render a diagnosis as to the claimed right shoulder disorder, left ankle arthritis, or bilateral shin disorder. Similarly, April 2012 and February 2013 VA examiners also determined that there was no current pathology to render a diagnosis for the claimed disorders. The February 2013 examiner further opined that as there were no current right shoulder, left ankle, or shin splint diagnoses, they could not be caused by the Veteran's service-connected LLE DVT. The Board notes, however, that the Veteran had documented service in Southwest Asia during the Persian Gulf War. Consideration of the provisions of 38 U.S.C.A. § 1117(a)(1), for objective indications of a qualifying chronic disability, which includes muscle and joint pain, neurological signs and symptoms, is therefore warranted. See 38 C.F.R. § 3.317. Therefore, the Veteran should be afforded a new VA examination to determine the current nature and etiology of his claimed right shoulder disorder, left ankle arthritis, and bilateral shin splint disorder, to include consideration of the provisions related to an undiagnosed illness or other qualifying chronic disability. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his claimed right shoulder disorder, left ankle arthritis, and bilateral shin splint disorder. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. (A) The examiner should note and detail all reported symptoms of a right shoulder disorder, left ankle arthritis, and right and left shin disorders. The examiner should conduct a comprehensive general medical examination, and provide details about the onset, frequency, duration, and severity of all symptoms related to the Veteran's right shoulder, left ankle, and bilateral shins. (B) The examiner should specifically state whether the Veteran's muscle and/or joint pain of the right shoulder, left ankle, and right and left shin is attributed to a known clinical diagnosis. (C) If any symptoms of a right shoulder disorder, left ankle disorder, or right and left shin splint disorders have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. (D) For each diagnosed disorder of the right shoulder, left ankle, or bilateral shins, the examiner should render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disorder is related to the Veteran's military service. In this regard, a left ankle sprain has previously been found to be related to the Veteran's military service. In rendering each requested opinion, the examiner should consider and discuss all relevant evidence, to include medical documents, and all lay assertions. The examiner should specifically address the significance, if any, of the Veteran's complaints of shoulder, ankle, and lower extremity pain during service. A rationale for any opinion offered should be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include consideration of the presumptions for Veterans of the Persian Gulf War codified at 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. If the claims remain denied, 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 Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).