Citation Nr: 18151251 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 12-07 520 DATE: November 16, 2018 REMANDED Entitlement to service connection for a bilateral hand condition is remanded. Entitlement to service connection for bilateral wrist condition is remanded. Entitlement to service connection for arthritis is remanded. Entitlement to service connection for right arm and right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for disability characterized by bilateral arm numbness and loss of strength is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1956 to August 1957. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from August 2010 and December 2010 rating decisions denying service connection for right arm and shoulder condition by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, and on appeal from a July 2011 rating decision of the VA RO in Guaynabo, Puerto Rico denying all other disabilities on appeal. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2018); 38 U.S.C. § 7107(a)(2) (2012). This matter was previously remanded in June 2017. However, as will be discussed further below, an additional remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) Entitlement to service connection for a bilateral hand condition, bilateral wrist condition, arthritis, right arm and right shoulder disability, left shoulder disability, and bilateral arm numbness and loss of strength is remanded. The Board previously remanded this matter in June 2017 to provide the Veteran a VA examination of his asserted disabilities. Accordingly, the Veteran was afforded VA examinations of his asserted disabilities in July 2017. No diagnoses were indicated; however, the Board notes that no imaging appears to have been completed. Additionally, the Veteran’s assertions as to his injury in service and symptomatology since service were not addressed in the VA examination reports, and the previous medical evidence of record and previous diagnoses were not addressed in the VA examination reports. Again, the Veteran asserts that his disabilities resulted from an in-service accident, in which he fell during a training exercise simulating a gas chamber filled with smoke, landing on his upper extremities. He reported that numerous other soldiers fell on top of him during the accident, and that when he regained consciousness he was in pain, and sent for medical evaluation. The Veteran is competent to report in-service incidents, and symptomatology that he experienced. The Board notes that the Veteran discussed this in-service incident in private treatment records in September 2006, prior to filing his claims for service connection in 2008 and 2010. The Veteran’s service treatment records appear to have been destroyed in the July 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. See August 2010 Memorandum Formal Finding on the Unavailability of Records. Under these circumstances, the Court has held that VA has a heightened duty “to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the veteran’s medical records have been destroyed.” Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Here, there are medical records which discuss symptoms or the presence of the disabilities on appeal. September 2006 private treatment notes show the Veteran reported persistent pain and inability to throw a ball with his right arm since the reported in-service event in 1956, and assessment was of right shoulder tendinosis, possible cuff tear, and history of old internal derangement of the right shoulder. August 2010 magnetic resonance imaging (MRI) of the right shoulder indicates that there was a rotator cuff tear due to an old injury. June 2009 imaging of the bilateral hands showed degenerative changes of the first metacarpophalangeal joints, and imaging of the bilateral wrists showed degenerative changes of the first carpometacarpal joint spaces bilaterally, and ossification suspicious for an old avulsion fracture versus a secondary ossification center. October 2006 imaging of the wrist showed moderate degenerative changes of the left, first carpometacarpal joint, and of the right ossicle. June 2009 imaging of the bilateral elbow revealed bilateral spurs in the choroid and olecranon processes of the ulnas. September 2010 private examination by Dr. N. Ortiz indicated that there was deterioration and limited motion of the shoulders, numbness of the arms, pain, stiffness, spasms, fatigue, numbness associated with the lumbar spine and upper and lower extremities; degenerative changes of the hands and wrist, first metacarpalphalangeal joint and first carpametacarpal joint. Dr. Ortiz considered the reported accident in service, and concluded that it impacted the Veteran’s hands and arm then transferred to his neck and back, causing chronic inflammatory changes with subsequent degenerative problems, loss of alignment and loss of curvature, causing disc herniation and bulging, such that radiculopathy and neuropathy “could also be present,” and it was more probable than not the Veteran had arthritis of his shoulders, hand, wrist, neck, and back secondary to his incident in service. The Board notes that since the last Board remand, the Veteran has been granted service connection for a cervical spine disability, a lumbar spine disability, bilateral radiculopathy of the upper and lower extremities, and bilateral neuropathy of the upper and lower extremities. The Board finds that an additional remand for VA examination is necessary to determine the nature and etiology of each of the claimed disabilities. Specifically, the VA examiner is to consider and address the Veteran’s asserted injury in service, symptomatology since service, and previous medical treatments and diagnoses. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. Should such exist, associate them with the Veteran’s electronic claims file. 2. Thereafter, schedule the Veteran for VA examination(s) to determine the nature and etiology of the Veteran’s claimed right shoulder and arm condition, left shoulder condition, bilateral arm numbness and loss of strength, bilateral hand condition, bilateral wrist condition, and arthritis. The examiner must be provided access to the claims folder. The examiner should review all records associated with the claims file and should note that this case review took place. Following the examination(s), any necessary imaging, and consideration for all pertinent medical history, the examiner must respond to the following: right shoulder and arm condition (a) Clarify whether the Veteran has a current diagnosis of his right shoulder and arm condition. The VA examiner should consider and address the September 2006 private treatment noting persistent pain and inability to throw a ball with his right arm since the reported in-service event in 1956, and assessment was of right shoulder tendinosis, possible cuff tear, and history of old internal derangement of the right shoulder. The VA examiner is also directed to the August 2010 magnetic resonance imaging (MRI) of the right shoulder indicating that there was a rotator cuff tear due to an old injury. Any discrepancies should be addressed by the VA examiner. (b) For any diagnosis of the right shoulder and arm found in (a), is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s currently diagnosed disability had its onset in service or is otherwise related to service, to include as due to the Veteran’s fall in service? (c) For any diagnosis found in (a), is it at least as likely as not that the Veteran’s currently diagnosed right shoulder and arm disability was caused or aggravated (increased in severity) by the Veteran’s service-connected cervical spine disability, a lumbar spine disability, bilateral radiculopathy of the upper and lower extremities, or bilateral neuropathy of the upper and lower extremities? left shoulder condition (d) Clarify whether the Veteran has a current diagnosis of his left shoulder condition. The VA examiner should consider and address the September 2010 private examination by Dr. N. Ortiz indicating that there was deterioration and limited motion of the shoulders, with arthritis of the shoulders. Any discrepancies should be addressed by the VA examiner. (e) For any diagnosis of the left shoulder found in (d), is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s currently diagnosed disability had its onset in service or is otherwise related to service, to include as due to the Veteran’s fall in service? (f) For any diagnosis found in (d), is it at least as likely as not that the Veteran’s currently diagnosed left shoulder disability was caused or aggravated (increased in severity) by the Veteran’s service-connected cervical spine disability, a lumbar spine disability, bilateral radiculopathy of the upper and lower extremities, or bilateral neuropathy of the upper and lower extremities? bilateral arm numbness and loss of strength (g) Clarify whether the Veteran has a current diagnosis of his bilateral arm numbness. The VA examiner should consider and address the September 2010 private examination by Dr. N. Ortiz indicating that there was numbness of the arms, pain, stiffness, spasms, and fatigue. Additionally, a June 2009 imaging of the bilateral elbow revealed bilateral spurs in the choroid and olecranon processes of the ulnas. Any discrepancies should be addressed by the VA examiner. (h) For any diagnosis of bilateral arm numbness and loss of strength found in (g), is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s currently diagnosed disability had its onset in service or is otherwise related to service, to include as due to the Veteran’s fall in service? (i) For any diagnosis found in (g), is it at least as likely as not that the Veteran’s currently diagnosed bilateral arm numbness disability was caused or aggravated (increased in severity) by the Veteran’s service-connected cervical spine disability, a lumbar spine disability, bilateral radiculopathy of the upper and lower extremities, or bilateral neuropathy of the upper and lower extremities? bilateral hand condition (j) Clarify whether the Veteran has a current diagnosis of his bilateral hand condition. The VA examiner should consider and address the June 2009 imaging of the bilateral hands showing degenerative changes of the first metacarpophalangeal joints. Additionally, a September 2010 private examination by Dr. N. Ortiz indicates degenerative changes of the hands, with degenerative changes shown in the first metacarpalphalangeal joint. Any discrepancies should be addressed by the VA examiner. (k) For any diagnosis of the bilateral hands found in (j), is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s currently diagnosed disability had its onset in service or is otherwise related to service, to include as due to the Veteran’s fall in service? (l) For any diagnosis found in (j), is it at least as likely as not that the Veteran’s currently diagnosed bilateral hand disability was caused or aggravated (increased in severity) by the Veteran’s service-connected cervical spine disability, a lumbar spine disability, bilateral radiculopathy of the upper and lower extremities, or bilateral neuropathy of the upper and lower extremities? bilateral wrist condition (m) Clarify whether the Veteran has a current diagnosis of his bilateral wrist condition. The VA examiner should consider and address the June 2009 imaging of the bilateral imaging of the wrists showed degenerative changes of the first carpometacarpal joint spaces bilaterally, and ossification suspicious for an old avulsion fracture versus a secondary ossification center. October 2006 imaging of the wrist showed moderate degenerative changes of the left, first carpometacarpal joint, and of the right ossicle. Additionally, a September 2010 private examination by Dr. N. Ortiz indicates degenerative changes of the wrist. Any discrepancies should be addressed by the VA examiner. (n) For any diagnosis of the bilateral wrists found in (m), is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s currently diagnosed disability had its onset in service or is otherwise related to service, to include as due to the Veteran’s fall in service? (o) For any diagnosis found in (m), is it at least as likely as not that the Veteran’s currently diagnosed bilateral wrist disability was caused or aggravated (increased in severity) by the Veteran’s service-connected cervical spine disability, a lumbar spine disability, bilateral radiculopathy of the upper and lower extremities, or bilateral neuropathy of the upper and lower extremities? Arthritis (p) Clarify whether the Veteran has a current diagnosis of arthritis. The VA examiner should consider and address the October 2006 and June 2009 imaging indicating degenerative changes. Additionally, a September 2010 private examination by Dr. N. Ortiz indicates arthritis of the shoulders, hand, wrist, neck, and back. Any discrepancies should be addressed by the VA examiner. (q) For any diagnosis of arthritis found in (p), is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s currently diagnosed disability had its onset in service or is otherwise related to service, to include as due to the Veteran’s fall in service? The VA examiner should consider and address the opinion provided by Dr. N. Ortiz in September 2010, finding that it was more probable than not the Veteran had arthritis of his shoulders, hand, wrist, neck, and back secondary to his incident in service. Any discrepancies should be addressed by the VA examiner. (r) For any diagnosis found in (p), is it at least as likely as not that the Veteran’s currently diagnosed arthritis disability was caused or aggravated (increased in severity) by the Veteran’s service-connected cervical spine disability, a lumbar spine disability, bilateral radiculopathy of the upper and lower extremities, or bilateral neuropathy of the upper and lower extremities? In rendering the requested opinions, the examiner is instructed to specifically discuss the Veteran’s asserted fall in service and any asserted continued symptomatology. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service. See Jandreau, 492 F.3d at 1377. For any opinion is that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of the severity of the nonservice-connected disorder before the on-set of aggravation. “Aggravation” is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale for the opinion must be provided. Review of the entire claims file is required. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on the next page)   3. Ensure that the examination report is adequate. If it is deficient in any manner, return the report to the examiner as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran’s claims. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel