Citation Nr: 1626261 Decision Date: 06/30/16 Archive Date: 07/11/16 DOCKET NO. 13-31 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a bilateral foot disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for chronic pain disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran served on active duty from October 2004 to January 2006 and from September 2008 to September 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In March 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing has been associated with the record. The record was held open for 60 days by the undersigned Veterans Law Judge. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the Veteran's case. A review of the documents in the Virtual VA file reveals VA treatment notes and VA examination reports relevant to the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that a remand is necessary to obtain any available outstanding service treatment records, private treatment records, and VA treatment records, and to obtain additional VA examinations and opinions. First, the Board notes that the Veteran served in the United States Army Reserve until April 2010. He was activated and deployed from 2004 to 2005 and from 2008 to 2009. Throughout the appeal, the Veteran has reported that he was treated by a Navy medical officer for complaints pertaining to his left shoulder in March 2009 at the Troop Medical Clinic at Camp Baharia, Iraq. He stated that the physician ordered an x-ray of the Veteran's shoulder and diagnosed him with bone spurs. He also reported that the physician told him that the records were being placed into a collective medical file that would be transferred to his unit to be added to his service treatment records and that he should be able to find the records in their medical database. See August 2013 Decision Review Officer informal conference report; March 2016 hearing transcript. A review of the service treatment records associated with the file does not show any March 2009 records or x-rays pertinent to complaints of left shoulder pain. Therefore, on remand, the AOJ should attempt to obtain any outstanding service treatment records. Moreover, during the March 2016 hearing, the Veteran testified that he was being treated by a private chiropractor and physical therapist. He also referenced private physical therapy treatment during an April 2014 VA orthopedic consultation. Therefore, the AOJ should also request authorization to obtain any outstanding private treatment records. In addition, in an April 2014 VA orthopedic consultation report, the evaluating orthopedist ordered a magnetic resonance imaging (MRI) study of the Veteran's left shoulder. A review of the record does not show a subsequent MRI report. On remand, the AOJ should obtain any outstanding VA treatment records and associate them with the record. The Veteran has claimed that he developed a left shoulder disorder as a result of a bone spur from heavy body armor and the rigors of deployment. He indicated that he first experienced symptoms in March 2009 due to the weight of his gear on his shoulders. The Board notes that the Veteran was afforded a VA examination in May 2010 in connection with his claim. In the May 2010 VA examination report, the VA examiner diagnosed the Veteran with bilateral shoulder impingement syndrome. However, the examiner indicated that he was unable to provide an opinion as to whether his shoulder disorder was related to service because he was not provided with the Veteran's service treatment notes for review. In a September 2013 VA examination report, the VA examiner diagnosed the Veteran with left shoulder impingement syndrome. He opined that the left shoulder disorder was not at least as likely as not service-related or caused by the rigors of deployment in service because there was no mention of treatment or injuries in the claims file. In addition, he opined that there was no evidence of secondary compensation. However, as noted above, service treatment records related to treatment for complaints of left shoulder pain appear to be missing from the Veteran's claims file. Therefore, after receipt of these outstanding records, the Veteran should be afforded another VA examination to address the etiology of his claimed left shoulder disorder. The Veteran has also claimed that he developed hypersensitivity to his feet as a result of being issued cold weather boots rather than hot weather boots during his 2008 to 2009 deployment to Iraq. Specifically, he reported that, while he was transitioning back to the United States, he worked on baggage claim detail for four days. He stated that he wore his issued weather Gore-Tex boots in 130 to 140 degree weather and was unable to take his boots off and clean his feet until he was on the plane on his way back to the United States. He testified that he went to the bathroom on the plane, took his boots and socks off, and was pulling flesh off of his feet with his socks. He stated that he used the first aid kit on the plane to wrap his feet. The Veteran noted that his feet went numb for approximately one to two months following the incident, and from that point, he had a constant pins and needles sensation in his feet. See March 2016 hearing transcript. In a September 2013 VA examination report, the VA examiner diagnosed the Veteran with bilateral feet hypersensitivity. He noted that the Veteran was not treated during service and that he had a normal electromyography (EMG) and no treatment for his feet. The examiner stated that he did not have an explanation for the cause and noted that the date was not consistent with service because he had no injury or treatment in his records. He also opined that it was not at least as likely as not that the foot disorder was service-related or aggravated by his body armor and rigors of service. The Board finds that this opinion is inadequate, as it does not address the Veteran's contentions. In addition, during the March 2016 hearing, the Veteran's representative asserted that the Veteran's bilateral foot disorder may be an undiagnosed illness because there was no known cause and no explanation for what caused the Veteran's chronic foot pain. Therefore, on remand, the Veteran should be afforded another VA examination to address the nature and etiology of his claimed bilateral foot disorder. Finally, the Veteran has claimed that he has a chronic pain disorder in parts of his body that have no diagnosed condition. Specifically, during the March 2016 hearing, he noted that he had pain in his neck, shoulders, low back, legs, feet, and arms. He stated that he felt like his body was being compressed and that he noticed his symptoms after he returned from his second deployment to Iraq. In a September 2013 VA examination report, the VA examiner stated that the Veteran had no specific diagnosis for chronic pain and fatigue. He noted that a January 2016 VA neck examiner found that the Veteran's chronic pain was consistent with multiple body complaints associated with his shoulders, back, hips, and feet. He noted that it was not one systemic problem. The September 2013 VA examiner provided the following opinion: Not at least as likely as not service related for any chronic pain syndrome. This is consistent with back and shoulders and hips and feet separate from each other and consistent with physical cause therefore not at least as likely as not service related. Patient walks with normal gait and has full range of motion bending without spasms in the back and total elevation with pain in last 20 degrees at shoulders the S.I. joints are nontender today. This is not consistent with chronic disease from the feet. I do not believe there is a syndrome or disease that can link these. I believe they are separate and individual and therefore not secondary to the service disabilities. Nevertheless, the examiner did not specifically address whether the Veteran may have an undiagnosed illness or medical unexplained chronic multi-symptoms illness due to his service in Southwest Asia. Therefore, on remand, Veteran should be afforded another VA examination to address the nature and etiology of his claimed pain disorder. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), the Veteran's Reserve unit, and/or any other appropriate location to request the Veteran's complete service treatment records and service personnel records. It is noted that the claims file contains copies of the Veteran's service records; however, the Veteran has indicated that these records are incomplete. Specifically, the Veteran has reported that he was treated by a Navy medical officer at the Troop Medical Clinic at Camp Baharia, Iraq, for shoulder complaints, and that x-rays were taken at that time. He indicated that, at that time, he was an activated Army Reservist and deployed as psychological operations (PSYOPS) support under the First or Seventh Marine Division. See August 2013 Decision Review Officer informal conference report; March 2016 hearing transcript, p. 19. Therefore, an additional attempt to obtain such records should be made. 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a left shoulder disorder, a bilateral foot disorder, and chronic pain syndrome. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should make a specific request for private treatment records pertaining to chiropractic treatment at the Salem Clinic and physical therapy at the Salem Clinic and PT Northwest (see April 2014 VA orthopedic consultation note, August 2014 VA treatment note, and March 2016 hearing transcript). The AOJ should also secure any outstanding, relevant VA treatment records, to specifically include a magnetic resonance imaging (MRI) study of the left shoulder ordered in April 2014. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any left shoulder disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current left shoulder disorders. In doing so, the VA examiner should specifically address the Veteran's reports that he has bone spurs in his collarbones that cause arm numbness. For each current diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder is causally or etiologically related to the Veteran's military service, including any injury or symptomatology therein. In rendering this opinion, the examiner should address the Veteran's contention that he developed a left shoulder disorder as a result of wearing heavy body armor and gear in service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any bilateral foot disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current bilateral foot disorders. For each current diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder is causally or etiologically related to the Veteran's military service, including any symptomatology therein. In rendering the opinion, he or she should address the Veteran's contention that he developed a foot disorder as a result of earing cold weather boots during his deployment to Iraq from 2008 to 2009. See March 2016 hearing testimony. If the Veteran has any symptomatology that is not attributable to a known clinical diagnosis, the examiner should opine as to whether it is at least as likely as not that there are symptoms due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Gulf War. If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any chronic pain disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify any current pain disorder. For each current diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder is causally or etiologically related to the Veteran's military service, including any symptomatology therein. If the Veteran has any symptomatology that is not attributable to a known clinical diagnosis, the examiner should opine as to whether it is at least as likely as not that there are symptoms due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Gulf War. If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. The AOJ should notify the Veteran that it is his responsibility to report for any scheduled examinations, to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation which shows that notice scheduling the examination was sent to the last known address should be associated with the VBMS file. It should also be indicated whether any notice that was sent was returned as undeliverable. 7. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 8. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 2014). _________________________________________________ J.W. ZISSIMOS 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).