Citation Nr: 21076337 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 15-12 347 DATE: December 23, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a bilateral shoulder disability is remanded. Entitlement to service connection for a bilateral arm disability is remanded. Entitlement to service connection for a bilateral hand disability is remanded. Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 2002 to February 2005. A Board hearing was held before the undersigned Veterans Law Judge in May 2018, and a transcript of the hearing is of record. In July 2018, the Board remanded the issues currently on appeal to attempt to obtain the Veteran's complete service personnel and treatment records. The Board regrets the additional delay, but finds remand is once again necessary for the reasons discussed further below. The Veteran contends that all of the above-listed claimed disabilities are related to a motor vehicle accident that occurred in 2004. In an October 2011 VA administrative decision, the agency of original jurisdiction (AOJ) determined that the July 2, 2004 motor vehicle accident and resulting injuries were not in the line of duty, and due to the Veteran's own willful misconduct. Under 38 U.S.C. § 105, an injury incurred during active service will be deemed to have been incurred in line of duty and not the result of the veteran's own misconduct when the veteran was, at the time the injury was suffered, in active service (whether on active duty or on authorized leave), unless such injury was a result of the person's own willful misconduct or abuse of alcohol or drugs. See also 38 C.F.R. § 3.301. In relevant part, the requirement for line of duty will not be met if it appears that at the time the injury was suffered, the veteran was avoiding duty by absenting himself without leave materially interfering with the performance of military duties. In this case, the limited service records available for review do not demonstrate that the Veteran was avoiding duty by absenting himself without leave materially interfering with the performance of military duties at the time of the July 2, 2004 motor vehicle accident. See September 2021 Appellate Brief; see also October 2020 correspondence from the Veteran's representative. Service records note that the Veteran was placed in a temporary duty status following the July 2, 2004 motor vehicle accident because the ship he was assigned to was leaving underway. The Veteran received nonjudicial punishment (NJP) in August 2004 for unauthorized absence from July 22-26, 2004, after the July 2, 2004 motor vehicle accident. See August 2004 Record of Unauthorized Absence; see also August 2004 Court Memorandum. With respect to whether the Veteran's claimed disabilities resulting from the July 2, 2004 motor vehicle accident are a result of his own willful misconduct or abuse of alcohol, the Board finds remand is necessary for additional development. A June 2011 report from the Defense Personnel Records Information Retrieval System (DPRIS) suggests that the Veteran's entire service personnel records have not been associated with the claims file. While it appears the AOJ has exhausted efforts to obtain the Veteran's complete service treatment records, it does not appear the AOJ has attempted to obtain the Veteran's complete service personnel records directly from Navy Personnel Command. See also July 2018 Board decision (instructing the AOJ to contact appropriate locations, to include applicable Navy units). Such records may contain additional details concerning the facts and circumstances of the motor vehicle accident on July 2, 2004. Accordingly, the Board finds remand is necessary to attempt to obtain the Veteran's complete service personnel records directly from Navy Personnel Command. Additionally, the appellant's representative asserts that the Veteran was not intoxicated by alcohol at the time of the accident. Private treatment records document that the Veteran was transported to a private hospital by ambulance in the early morning hours of July 2, 2004. A July 2004 Emergency Department Nurses Notes and Assessment indicates that a legal blood draw was performed at approximately 04:55 in the morning with civil authorities present. Lab results revealed the Veteran had an alcohol level of "0.22 GM/DL" on July 2, 2004. It appears such evidence indicates a blood alcohol level of 0.22 in grams (or "GM") per deciliter, or a blood alcohol concentration (BAC) of 0.22. The Board adds that, while the date of the offense is not indicated, the Veteran's NJP in August 2004 also included a violation of wrongfully consuming alcoholic beverages under the age of 21. In September 2009, the Veteran reported that he was under the influence of alcohol at the time of the motor vehicle accident. See September 2009 VA Form 21-4176. In a March 2010 VA psychiatry consult, the provider indicated the Veteran reported being involved in a motor vehicle crash in 2004 while intoxicated. See also June 2010 VA psychiatry consult (the provider indicated the Veteran dwelled to some extent about the possibilities of the accident and his poor decision making). However, the Veteran's representative asserts the lab result at the hospital on July 2, 2004 reflects a blood alcohol level of 0.22 miligrams (or "mg") per deciliter, resulting in a BAC well below the legal limit. See also May 2018 Board hearing transcript. In support of this argument, the Veteran's representative submitted documents for the Board's consideration in October 2020, including a document that notes that a case in the Honolulu courts against the Veteran for driving under the influence on July 2, 2004 was dismissed without prejudice. In light of the above and given the Veteran's assertions, the Board finds an attempt should be made on remand to obtain any motor vehicle collision reports prepared by the Honolulu Police Department pertaining to the Veteran's July 2, 2004 motor vehicle accident. As a final matter, the Board recognizes that the Veteran attributes his current back and neck disability to the July 2, 2004 motor vehicle accident. However, the Board also recognizes that service treatment records document reports of and treatment for low back pain and cervical pain prior to the July 2, 2004 motor vehicle accident. See June 2002 and September 2003 service treatment record. Although the Veteran was afforded a VA examination in July 2020 for his claimed back and neck disability, it does not appear that the examiner considered whether such may otherwise be related to the Veteran's service exclusive of the motor vehicle accident on July 2, 2004. See Kent v. Nicholson, 20 Vet. App. 1, 16 (2006) (a claim "includes all theories under which service connection may be granted"); see also Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008) (characterizing Schroeder as holding that "the duty to assist applies to the entire claim, which might require assistance in developing more than one theory in support of that claim"). Accordingly, and in addition to any other development deemed necessary, the Board finds a new medical opinion pertaining to the Veteran's claimed back and neck disability should be obtained on remand. The matters are REMANDED for the following actions: 1. Attempt to obtain the Veteran's complete service personnel records from: Navy Personnel Command (PERS-312E) 5720 Integrity Drive Millington, TN 38055-3120 Document all efforts made to obtain complete service personnel records and any responses in the claims file. 2. With any assistance needed from the Veteran, attempt to obtain any motor vehicle collision reports prepared by the Honolulu Police Department pertaining to the Veteran's July 2, 2004 motor vehicle accident. Document all efforts made to obtain any motor vehicle collision reports prepared by the Honolulu Police Department pertaining to the Veteran's July 2004 motor vehicle accident, and any responses in the claims file. 3. Following the above development, and any additional development deemed necessary, obtain a new medical opinion as to whether the Veteran's claimed back disability at least as likely as not (approximately 50 percent probability) had onset in or is otherwise related to the Veteran's service exclusive of the motor vehicle accident on July 2, 2004. The examiner must consider the service treatment records reflecting treatment for low back pain prior to the July 2, 2004 motor vehicle accident. A complete rationale must be provided for all opinions rendered. 3. Obtain a new medical opinion as to whether the Veteran's claimed neck disability at least as likely as not (approximately 50 percent probability) had onset in or is otherwise related to the Veteran's service exclusive of the motor vehicle accident on July 2, 2004. A complete rationale must be provided. The examiner must consider the service treatment records reflecting treatment for neck pain prior to the July 2, 2004 motor vehicle accident. A complete rationale must be provided for all opinions rendered. 4. Readjudicate the appeal. If the benefits sought remain denied, issue the Veteran and his representative a supplemental statement of the case and inform the Veteran of his appeal options. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.