Citation Nr: 1756787 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 13-20 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right elbow disability. 2. Entitlement to service connection for a right shoulder disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served in the U.S. Marine Corps Reserves. He had active duty from November 1995 to March 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The issue of entitlement to service connection for right wrist disability has been raised by the record in August 2017 sworn testimony, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND In February 2010, VA received a claim for service connection for disability of the right elbow and right shoulder. At that time, the Veteran reported date of onset in 1998. With regard to active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 38 C.F.R. §§ 3.6, 3.303, 3.304. Here, the Veteran served in the U.S. Marine Corps Reserves. It appears he entered the Reserves in July 1995 based on an enlistment examination for the Reserves dated in July 1995 and it appears he was administratively separated in June 2000 for failure to meet retention standards (height and weight). Service department records show that he had active duty from November 1995 to March 1996, and then returned to Reserves status thereafter. His dates of ACDUTRA and/or INACDUTRA are not identified by the Veteran or verified by the RO in the record. Although complete STRs appear to be unavailable, which was documented in the RO's formal finding memorandum dated January 2011, those STRs and personnel records currently associated with the claims file in November 2009 reflect as follows: A February 1996 examination report shows normal clinical evaluation of the upper extremities and the Veteran denied shoulder or elbow problems; Reserves annual verification/check-in exam dated in June 1998 indicated no abnormalities found; a personnel record dated in June 1999 shows that the Veteran attested to the fact he had had no injury since his last annual exam; an April 2000 treatment record shows that the Veteran was assessed with lateral epicondylitis of the right elbow after unloading sea bags "last month." The Board observes that report of VA examination dated in July 2010 reflects the examiner's medical opinion that right elbow epicondylitis shown on exam is related to the Veteran's loading of sea bags as reported during active duty. Having carefully reviewed the record, the Board finds that remand is necessary to: (1) Verify of all periods of service to include ACDTURA and INACDTURA; and (2) Request from the Veteran's Reserve unit(s) copies of his military service treatment records and any line of duty determinations. The Board observes that, although the RO requested a line of duty determination from the Veteran, no attempt was made to contact the Veteran's Reserve unit(s) for this information. The central inquiry in this case is whether the Veteran injured his right elbow and/or right shoulder while he was on ACDUTRA or INACDUTRA, to include per the Veteran's report when loading sea bags in May or June 2000. To ensure VA has met its duty to assist, remand is necessary. Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the Veteran to identify the date(s) of his alleged right elbow and right shoulder injuries that were incurred during his Reserves service, if possible. 2. In accordance with all applicable procedures, the AOJ should: (a) Verify through the appropriate department and/or procedures whether the Veteran had ACDUTRA and/or INACDUTRA during Marine Corps Reserve service for any period of time identified by the Veteran above, or all dates of Reserves service if the Veteran cannot narrow the time period. (b) Contact the Veteran's Reserve unit(s) and request copies of his military service treatment records, any line of duty determinations, and verification of all periods of service to include ACDTURA and INACDTURA. (c) All verified dates of ACDUTRA and/or INACDUTRA should be noted in a memorandum and associated with the claims file. 3. If the AOJ finds that there are no periods of ACDUTRA/INACDUTRA, this should be documented in the claims file and the AOJ should notify the Veteran (and any representative). Otherwise, the AOJ should notify the Veteran (and any representative) of any period(s) of ACDUTRA and/or INACDUTRA that have been verified. 4. The AOJ should again request from the Veteran that he provide: (a) Any information or evidence in his possession or procurable supporting that he was on ACDUTRA/INACDUTRA at the time he injured his right elbow and/or right shoulder. (b) If existing, copies of pertinent treatment records in his possession, or authorization VA to obtain those records on his behalf. 5. After ensuring any other necessary development has been completed, the AOJ should readjudicate the claims. If the benefits sought are not granted, the Veteran and representative, if any, should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran and his representative have the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2014). _________________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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) (2017).