Citation Nr: 1623928 Decision Date: 06/15/16 Archive Date: 06/29/16 DOCKET NO. 12-07 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine. 2. Entitlement to service connection for osteoarthritis of the bilateral shoulders. 3. Entitlement to service connection for radiculitis/radiculopathy of the bilateral upper extremities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran had active duty from May 1978 to November 1985, with additional reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that further development is necessary prior to appellate review. Initially, the Board finds that the record indicates that there are likely outstanding VA treatment records. A March 16, 2011 VA treatment record indicated that the Veteran was followed by VA for a number of medical issues and was being seen at present for his annual comprehensive examination. Nevertheless, the only VA treatment records associated with the claims file are dated from March 16, 2011 through April 25, 2011. Accordingly, on remand all outstanding VA treatment records should be obtained and associated with the claims file. In various correspondences, the Veteran has reported that he injured his neck, shoulders, and arms when the drive shaft of the armored personnel carrier he was riding in broke, causing the vehicle to careen off the trail and down a hill, causing him to be slammed around the drivers compartment. He reports that he did not seek treatment for his injuries following the accident because of his unit's operational needs. The Veteran was provided a VA shoulder examination in May 2011 and was assessed with mild right shoulder arthritis. The examiner acknowledged that a September 4, 1985 report of medical history noted that the Veteran reported a four month history of an intermittent painful right shoulder when raising his right arm. However, the examiner explained that the symptoms noted on the report of medical history differed from the Veteran current reports of superior shoulder pain and numbness of the right arm. The examiner also noted that the Veteran's September 1985 report of medical examination indicated that evaluation of the Veteran's upper extremities was normal. On that basis the examiner opined that the Veteran's right shoulder condition was less likely as not the result of or related to the documented in-service injury or treatment. The Veteran was afforded another VA examination in September 2011, at which time he was diagnosed with DDD of the cervical spine, bilateral osteoarthritis of the shoulders, and bilateral radiculitis/radiculopathy. The examiner was requested to opine whether the Veteran's diagnoses were at least as likely as not due to or the result of his service-connected lumbar strain. In response, the examiner checked the box indicating the claimed conditions were less likely than not incurred in or caused by the claimed in-service event, injury, disease. In support of that finding, the examiner stated that the Veteran's probable radiculopathy, cervical DDD, and osteoarthritis were unrelated to his claimed lumbar strain and were "more likely due to his spine." The examiner stated that they were "two distinct areas that are not related and not caused by an injury in 1985." The Board notes that the examiner's opinion does not address the Veteran's contention that his disabilities are related to an in-service armored personnel carrier incident in late 1978 or early 1979. Accordingly, an addendum opinion addressing that contention should be obtained. Additionally, the September 2011 report does not fully address whether the Veteran's disabilities on appeal are caused or aggravated by his service-connected lumbar strain, an addendum opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (stating that once VA undertakes to provide a VA examination or obtain a VA opinion, even if not required to do so, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of all outstanding VA treatment records, to include all VA treatment records since the Veteran's discharge from active duty and associated them with the claims file. All efforts to obtain these records must be documented in the claims file. If records earlier than March 2011 do not exist, the claims file should be annotated to reflect such and the Veteran notified of such. 2. Ask the Veteran to provide the names and addresses of any private medical care providers who have treated his for the disabilities on appeal. After securing the necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. If any requested records cannot be obtained, the Veteran should be notified of such. 3. After the above is completed to the extent possible, send the claims file to the VA examiner who authored the September 2011 examination report or an appropriate substitute. If a new examination is deemed necessary to respond to the questions below, one should be scheduled. Following review of the claims file, the examiner should respond to the following: a. Provide an opinion on whether is it at least as likely as not (50 percent probability or greater) that the Veteran's current degenerative disc disease of the cervical spine, osteoarthritis of the bilateral shoulders, and radiculitis / radiculopathy of the bilateral upper extremities are etiologically related to the Veteran's reports of being slammed around the driver compartment of an armored personnel carrier when the drive shaft broke and the truck careened off the trail and down a hill, although he did not seek treatment. Please explain why or why not. b. If not related to service, opine whether is it at least as likely as not that the Veteran's degenerative disc disease of the cervical spine, osteoarthritis of the bilateral shoulders, and/or radiculitis/radiculopathy of the bilateral upper extremities are caused by his service-connected lumbar strain? Please explain why or why not. c. If not caused by his service-connected lumbar strain, opine whether it is it at least as likely as not that the Veteran's degenerative disc disease of the cervical spine, osteoarthritis of the bilateral shoulders, or radiculitis / radiculopathy of the bilateral upper extremities are permanently worsened beyond normal progression (versus temporary exacerbation of symptoms) by his service-connected lumbar strain. If so, the examiner should attempt to quantify the degree of worsening beyond the baseline level of the cervical, shoulder, and radiculitis/radiculopathy disabilities. The examiner should provide a rationale for the opinions expressed. 4. After completing the above development, and any development deemed necessary, readjudicate the issues on appeal. If the benefits sought remain denied, provide a supplemental statement of the case to the Veteran and his representative and an appropriate period to respond, and then return the appeal to the Board. 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 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 2014). _________________________________________________ K. A. BANFIELD 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).