Citation Nr: 21076908 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 15-31 847 DATE: December 28, 2021 REMANDED Entitlement to service connection for degenerative disc disease of the cervical spine is remanded. Entitlement to service connection for left arm disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1976 to June 1979 and from January 1982 to November 1987. At the outset, the Board notes that the Veteran received a discharge under "dishonorable conditions" for his service from January 1982 to November 1987. See June 2013 VA Administrative Decision (Veteran's "bad conduct" discharge for this period of service deemed a discharge under "dishonorable conditions"). Importantly, a discharge under "dishonorable conditions" for any period of service is a bar to benefits from the VA for that period of service. See 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. Nonetheless, in this case, the Veteran may still receive VA benefits based on disabilities, if any, incurred during his period of honorable active service, from June 1976 to June 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file and has been reviewed. In June 2021 the Board remanded the Veteran's claim for further development. The required development has been completed and the matter is properly before the Board at this time. The Board also notes the Veteran's claim has been recharacterized in several forms during his appeal. For example, in January 2012, the Veteran claimed that he had a left hand injury while in service. However, in April 2021, the Veteran made several statements at his hearing that he has chronic pain in his left arm, elbow and hand. Given the above, the Veteran's symptoms have been consistently described as pain in his left arm and the Board finds that it is more appropriate to recharacterize his appeal as an entitlement to a left arm disability. Importantly, the Veteran is not prejudiced by this because the evidence and analysis for the claim of service connection are the same for both disabilities. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b)(1). 1. Entitlement to service connection for degenerative disc disease of the cervical spine 2. Entitlement to service connection for left arm disability Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.§ 5103A; 38 C.F.R.§ 3.159. The Board finds that a remand is necessary on the issue of entitlement to service connection for degenerative disc disease (DDD) for cervical spine and for left arm disability because the Veteran has identified service treatment records that are not otherwise associated with the Veteran's claims file. See 38 C.F.R. § 3.159(c)(2). Specifically, Medical Treatment Record - Government Facility, received by VA on May 5, 2021, contains competent and credible evidence that the Veteran was in a motor vehicle accident while in the line of duty with the Army Reserves on September 17, 1980, resulting in a cervical spine injury. See e.g., Individual Sick Call Slip, September 1980 (indicating the Veteran, in the line of duty while assigned to Charlie Company, 3/7 197th INF, did seek medical attention for a "wreck"); Chronological Record of Medical Care, US Army 197th Family Practice Clinic, Ft. Benning, September 1980 (detailing the accident as one that the Veteran was in a jeep and was struck by a 2 12 ton military vehicle); Letter of Instruction, September 1980 (letter to the Veteran's military commander identifying the Veteran as in his command and who sustained a neck injury with follow up treatment provided by U.S. Army Health Clinic, Ft. McPherson, Georgia). Moreover, the Veteran's "Record of Assignments" indicate that he served with the Army Reserves from June 1979 to November 1981 in the Atlanta Detachment, 2d MCT at Fort Gillem, Georgia. Additionally, prior to re-enlisting for his second period of active duty, the Veteran reported that he broke his left arm in 1980; the same year as the above-noted motor vehicle accident. See Report of Medical Examination and History, October 1981. It is not clear whether the Veteran's left arm was injured in the 1980 motor vehicle accident that injured his cervical spine. In this regard, service treatment records from the 197th Family Clinic in Fort Benning, Georgia and the U.S. Army Health Clinic in Ft. McPherson, Georgia, as well as service personnel records from the Atlanta Detachment, 2d MCT at Fort Gillem, Georgia (Army Reserves) are not in the evidentiary record at this time and are relevant to assess the claims of the Veteran in this case. Therefore, the Board finds that a remand is appropriate for the Agency of Original Jurisdiction (AOJ) to make efforts to obtain these records. Moreover, the Board notes that the Veteran did not receive a Department of Veterans Affairs (VA) examination for his claim. A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran is diagnosed with degenerative disc disease in his cervical spine as well as severe ulnar neuropathy in his left elbow with denervation in the ulnar muscles of the left hand with carpal tunnel syndrome. See Bay Neurological Institute Treatment Records, Dr. M.A.T., January 2021. Moreover, as noted, there is evidence that the Veteran was in a motor vehicle accident while in the line of duty with the Army Reserves in 1980 that resulted in injury to his cervical spine. Accordingly, the Board also finds that a VA examination is necessary to appropriately make an informed decision in this claim. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records pertinent to this claim. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records, if any. All efforts to obtain these records should be fully documented in the record. If possible, the Veteran should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 3. Obtain and associate with the claims file all service treatment records for this Veteran, from June 1979 to, at least, November 1981, from the 197th Family Clinic in Fort Benning, Georgia and the U.S. Army Health Clinic in Ft. McPherson, Georgia, as well as service personnel records from Charlie Company, 3/7 197th INF, Atlanta Detachment, 2d MCT at Fort Gillem, Georgia. 4. After completing the development requested above, schedule the Veteran for VA examinations for his cervical spine and left arm disabilities with appropriate clinicians. Arrange for the record, to include a copy of this Remand, to be forwarded to an appropriate clinician for review and to provide the opinions sought. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: (a.) Provide a diagnosis for all disabilities related to the Veteran's cervical spine and left arm disabilities, including any radiculopathy and neuropathy, if warranted. (b.) For each diagnosed disability provide an opinion as to whether it is at least as likely as not that it had its onset directly during the Veteran's service or is otherwise related to any event or injury during his service. (c.) If a cervical spine disability is found to be related to the Veteran's service, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that each diagnosed disability related to the Veteran's left arm disability was proximately caused or aggravated beyond its natural progression by his cervical spine disability. In providing the requested opinions, the examiner is asked to specifically consider and talk about the service treatment records, to include the Veteran's fall from his bunk during A.I.T. in September/October 1976 and also any injuries sustained during a period of service in the Army Reserves, from 1979 to 1981, particularly in light of the evidence regarding his motor vehicle accident in 1980. Importantly, the examiner should not consider any event, injury or onset for any disease or injury during the Veteran's period of service from January 1982 through November 1987. In providing answers to the above questions the examiner should consider and discuss, among other things, the Veteran's competent lay claims regarding observable symptomatology in and/or since service. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 5. After completion of the aforementioned, the AOJ should readjudicate the issues on appeal. If the benefit sought on appeal is not granted, then the AOJ should provide the Veteran with a supplemental statement of the case and afford him the appropriate opportunity to respond thereto. Thereafter, the case must be returned to the Board for further appellate review. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.