Citation Nr: 1639392 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 03-34 990A ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for residuals of a left arm or left forearm injury. [The issues of entitlement to an initial disability rating greater than 40 percent for degenerative arthritis of the lumbar spine, entitlement to an effective date earlier than April 17, 2003, for the award of service connection for degenerative arthritis of the lumbar spine, entitlement to service connection for an acquired psychiatric disorder, to include depression, claimed as secondary to the service-connected back condition, entitlement to service connection for a disability of the cervical spine, entitlement to service connection for a disability of the left leg, and entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities, are addressed in a separate Board decision.] REPRESENTATION Veteran represented by: Sean A. Ravin, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and C. N. Bash, M.D. ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from May 1976 to May 1979. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision issued by the RO in Roanoke, Virginia. During the pendency of the appeal, the case was transferred to the jurisdiction of the RO in Houston, Texas. In February 2006, the Veteran and C. N. Bash, M.D., testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing held in Washington, D.C. A transcript of that hearing has been associated with the record. During the February 2006 hearing, the undersigned agreed to hold the record open for a period of 60 days to allow for the submission of additional evidence. The Veteran submitted additional evidence within that time frame, and the Board thereafter denied the appeal by a decision entered in May 2006. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2006, the parties to the appeal (the Veteran, through his attorney, and a representative from VA General Counsel) filed a Joint Motion for Remand of the Board's decision (Motion). The parties agreed that the Board's decision should be vacated and the matters on appeal remanded for further development and readjudication, to include consideration of whether the history the Veteran related with respect to an in-service fall was credible and whether the evidence was sufficient to warrant a medical examination or opinion regarding the etiology of the claimed conditions. The Court granted the Motion later that month. In January 2007, the Board requested an expert medical opinion from the Veterans Health Administration (VHA), pursuant to 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901. Clarification of the opinion was sought in July 2007. In December 2007, the Board provided a copy of the VHA medical expert's clarification/addendum to the Veteran and his representative, and informed them of their right to submit additional evidence and/or argument within 60 days. A response was received later that month wherein the Veteran's attorney requested a copy of the original opinion. The Board supplied that evidence in February 2008. In April 2008, the Board found that the history the Veteran related with respect to an in-service fall was credible and remanded the left shoulder, arm, and forearm claims to the agency of original jurisdiction (AOJ) for additional development; specifically, to adjudicate a pending, inextricably intertwined claim for service connection for a neck disability; to identify diagnoses for disabilities of the Veteran's left shoulder, arm, and forearm; to reconcile the conflicting medical opinions of record with respect to whether disabilities of the left shoulder, arm, and/or forearm were related to service; and, if service connection was granted for a disability of the cervical spine, to obtain a medical opinion with respect to the likelihood that such disability caused or aggravated disabilities of the left shoulder, arm, and/or forearm. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. In February 2015, the Veteran, through his attorney, waived his right to have the agency of original jurisdiction AOJ review additional evidence received subsequent to the last relevant supplemental statement of the case (SSOC). 38 C.F.R. § 20.1304(c). In October 2015 and March 2016, the Board granted the Veteran's attorney's requests for extension of time to submit additional evidence and/or argument in support of the Veteran's appeal. Further evidence was received around that time, along with an additional waiver of AOJ review. In December 2015, the Veteran and E. N. Tripi, Ph.D., CRC, testified before a second VLJ at a Board hearing held in Washington, D.C. Inasmuch as that testimony was limited to different issues (identified parenthetically, above), those issues are being addressed in a separate Board decision. See 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. The Board notes that, in addition to the paper claims files, there are also electronic (Veteran Benefits Management System (VBMS) and Virtual VA) paperless claims files associated with the Veteran's claims. The electronic files contain additional evidence, including additional VA treatment records, which the Board has reviewed. For the reasons set forth below, the Veteran's left shoulder, arm, and forearm claims must again be REMANDED to the AOJ. VA will notify the Veteran if further action is required on his part. REMAND In a separate decision (referenced above), issued simultaneously with this one, the VLJ having jurisdiction over other of the Veteran's claims has ordered additional evidentiary development, to include obtaining all records of treatment afforded the Veteran at the VA outpatient clinic in McAllen, Texas, and all associated clinics, from 1979 to the present; from the VA Medical Center (VAMC) in Martinsburg, West Virginia, and all associated clinics, from 1979 to the present; and from the South Texas Veterans Health Care System since September 2013. The VLJ has also ordered readjudication of the Veteran's claim for service connection for disability of the cervical spine, which, as noted above, has previously been determined to be inextricably intertwined with the claims for service connection for disabilities of the left shoulder, arm, and forearm. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). In light of that action, the Veteran's left shoulder, arm, and forearm claims must also be remanded. The Board also finds that other development is warranted as it pertains to the claimed disabilities of the Veteran's left upper extremity. Specifically, the Board finds that the Veteran's service personnel records should be obtained, inasmuch as they could contain physical profiles or other information pertaining to his reported in-service fall, which is otherwise undocumented in the existing service records. The Board further finds that efforts should be made to obtain relevant post-service records of treatment from the Lawton/Fort Sill VA Clinic in Fort Sill, Oklahoma (where the Veteran indicated in a September 2003 notice of disagreement that he had received relevant treatment soon after leaving service). If, as a result of the foregoing development, additional evidence is received that bears on the etiology of the Veteran left shoulder, arm, and/or forearm difficulties, the AOJ should make arrangements to have the VA examiner who previously evaluated the Veteran in May 2011, and prepared an addendum in July 2012, review the expanded record and provide a supplemental report regarding the extent to which, if any, the additional evidence impacts on his prior opinions. For the reasons stated, this case is REMANDED for the following actions: 1. Request from all appropriate source(s) a complete copy of the Veteran's service personnel records. Efforts to obtain the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence procured, if any, should be associated with the record. If the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his attorney should be notified. 2. Take action to ensure that all relevant records of the Veteran's treatment at the Lawton/Fort Sill VA Clinic in Fort Sill, Oklahoma, are associated with the record, including, but not limited to, any and all non-electronic (i.e., typed or hand-written) clinical records, progress notes, and/or reports of hospitalization, whether or not they have been archived, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence procured, if any, should be associated with the record. If the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his attorney should be notified. 3. Complete the evidentiary development directed in the separate decision of the Board (referenced above), issued simultaneously with this one, to include obtaining all records of treatment afforded the Veteran at the VA outpatient clinic in McAllen, Texas, and all associated clinics, from 1979 to the present; from the VAMC in Martinsburg, West Virginia, and all associated clinics, from 1979 to the present; and from the South Texas Veterans Health Care System since September 2013. Efforts to obtain the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence procured, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his attorney should be notified. 4. If, as a result of the foregoing development, additional evidence is received that bears on the etiology of the Veteran's difficulties with respect to his left shoulder, arm, and/or forearm, make arrangements to have the VA examiner who previously evaluated the Veteran in May 2011, and prepared an addendum in July 2012, review the expanded record. After reviewing the expanded record, the examiner should prepare a supplemental report indicating the extent to which, if any, the additional evidence impacts on his prior opinions as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a disability of the left shoulder, arm, and/or forearm that (1) had its onset during, or is otherwise related to, his active military service, or (2) has been caused or aggravated by disability of his cervical spine. If the prior examiner is no longer employed by VA, or is otherwise unable to provide the opinions requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinions. A complete rationale for all opinions should be provided. 5. 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 for service connection for disability of the left shoulder, arm, and forearm should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his attorney should be issued an SSOC. 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 (Court) 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. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2015).