Citation Nr: 1433428 Decision Date: 07/25/14 Archive Date: 07/29/14 DOCKET NO. 04-14 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for a left arm and left shoulder disorder. REPRESENTATION Appellant represented by: Christine Lehr, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to August 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran provided testimony at a May 2010 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The case was remanded for further development in April 2006, August 2009, and February 2011. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless appeals processing systems. Accordingly, any future action regarding this appellant's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the February 2011 remand, the Board noted that the AOJ had made a request in May 2008 to the Naval Personnel Command (Pers-312) for additional service treatment records identified by the Veteran. However, the Board could not locate an August 2008 response from the service department (cited by the RO in a May 2009 Supplemental Statement of the Case) The Board notes that a response to the May 2008 letter to the Navy Personnel Command is still not associated with the claims file. However, a January 2009 document does contain August 2008 responses from the National Personnel Records Center (NPRC) to the AOJ's July 2008 request for information for these same additional service treatment records. Nevertheless, the responses only indicated that a search for the records could not be performed because of how the AOJ had submitted the requests. In particular, it was noted that three facilities could not be searched and that the request had to be narrowed down to one hospital. In response to the Board's February 2011 remand directives, the AOJ made a request in December 2011 for clinical records at the USAF Dispensary NAHA APO San Francisco 96235, for injuries to the neck, left arm, and shoulder due to a May 1, 1972, assault, for the dates from May 1, 1972, to May 31, 1972. A negative response was received in March 2012. However, the record, including a November 2011 deferred rating decision, as well as the December 2011 request for information from the AOJ, reflects that the AOJ made no follow-up attempts to obtain records pursuant to the specific requests made in May 2008 by letter to the Navy Personnel Command and in July 2008 by a request for information to the NPRC, which were for records of clinic and inpatient treatment from Moffett, Oakland, and Alameda Naval Air Stations for the period form July 1, 1974, to December 31, 1974, and for Moffett, Oakland, and Alameda Naval Air Stations for the period from January 1, 1975, to February 28, 1975. The August 2008 response indicates that NPRC mistakenly believed that it was possibly searching for records of treatment after an initial accident and indicated that it could not search for records from all three service department facilities in one request. The August 2008 NPRC response further requested details as to the initial accident and requested that the AOJ indicate at which hospital the Veteran was treated. Notably, these AOJ requests were not for records of treatment immediately after the May 1, 1972, injury. Rather, the purpose of these requests, as initiated by the AOJ, was to determine whether the Veteran received follow-up and in-patient clinical treatment for neck, left shoulder, and left arm complaints during the period from July 1, 1974, to February 28, 1975, as contended by the Veteran. The AOJ should submit, if necessary, separate requests for individual facilities, as may be required in seeking to obtain such additional service treatment records. See 38 U.S.C.A. § 5103A(a)-(c). Further, as will be set forth further below, a VA medical examiner's opinion rendered in June 2013 requires additional findings and clarification. Because additional records of in-service treatment could affect such an opinion, it should not be requested until the search for additional service treatment records, as described above, is completed. Lastly, on remand, the AOJ should seek to obtain any additional relevant records of treatment. See 38 U.S.C.A. § 5103A(a)-(c). Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to his claims. The AOJ should attempt to obtain and associate with the claims folder any additional medical records identified by the Veteran that are not already of record. 2. The AOJ should submit a request or requests to the National Personnel Records Center and any other appropriate entities for the following records of clinic or inpatient treatment, which were for referral and treatment of residuals of injuries to the neck, left shoulder, and left arm sustained in a May 1, 1972, assault: * Naval Air Station (NAS) Dispensary, Moffett Field, CA (July 1974 to December 1974) * NAS Dispensary/Hospital Alameda, CA (July 1974 to December 1974) * Naval Station Hospital, Oakland, CA (July 1974 to December 1974) * NAS Dispensary, Moffett Field, CA (January 1975 to February 1975) * NAS Dispensary/Hospital, Alameda, CA (January 1975 to February 1975) * Naval Station Hospital, Oakland, CA (January 1975 to February 1975) These were the specific records sought by the AOJ in a May 2008 letter to the Navy Personnel Command (Pers-312). The AOJ should also seek to determine whether it has a response to the May 16, 2008, letter for the above-listed records addressed to the Navy Personnel Command (Pers-312). If so, the AOJ should associate the response with the VBMS claims file and take any indicated follow-up action. If not, the AOJ should submit a new request for the above-listed records to the Navy Personnel Command (Pers-312). If such records cannot be obtained, the AOJ should document whether it is reasonably certain that such records do exist or that further efforts to obtain these records would be futile. 3. After all available service treatment records have been received, the AOJ should return the claims file to the examiner who conducted the June 2013 examination of the Veteran's neck, shoulder, arm and wrist, or, if that examiner is not available, to another appropriately qualified clinician, to provide a clarifying medical opinion. The claims folder and a copy of this remand should be made available to the examiner. If the examiner finds that additional physical examination or testing of the Veteran is required to answer the questions posed by the Board, such an examination or testing should be scheduled. The examiner should review and discuss the findings at Ohio State University Medical Center after a February 2002 MRI of the cervical spine and a June 2003 electrodiagnostic NCV study. After the June 2003 NCV study, the treating and reviewing physicians' diagnoses were (1) mild carpal tunnel syndrome on the left, and (2) findings consistent with neural injury distal to the nerve roots (foraminal level) at the C5-6 / C6-7 level. The treating and reviewing physicians opined that the findings as to (2) were correlated with MRI findings and were consistent with a history of trauma. The examiner should also review and discuss a September 2006 VA neurological examination report relating the onset of the Veteran's symptoms of neck and left arm pain to service. The examiner should provide an opinion as to whether he agrees with the September 2006 VA examiner. If he agrees with the September 2006 VA neurology opinion, he should indicate the likely etiology of the in-service left arm and neck pain (the September 2006 VA examiner stated it was not necessarily due to the May 1, 1972, altercation, but did not identify the etiology of the pain). The examiner should provide a fully reasoned explanation for his opinions. The examiner should also state whether it is at least as likely as not that: (a) the Veteran has a cervical spine disorder that began during active service or within one year after discharge from service or that is related to any incident of service (b) the Veteran has carpal tunnel syndrome that began during active service, is related to any incident of service, or is caused or chronically worsened by his service-connected peripheral neuropathy of the left upper extremity (c) the Veteran has any neurological disorder of the neck, left shoulder, or left arm (other than service-connected peripheral neuropathy of the left arm) that began during active service, is related to any incident of service, or is caused or chronically worsened by service-connected peripheral neuropathy of the left upper extremity (The term "as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 4. The AOJ should conduct any other development that may be indicated as a consequence of the action taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2013).