Citation Nr: 1310154 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-40 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right leg disability. 2. Entitlement to service connection for left leg disability. 3. Entitlement to service connection for a back disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran originally sought entitlement to service connection for emphysema. The benefit was denied in the rating decision of April 2010 and the Veteran included the issue in his notice of disagreement of April 2010. The RO issued a statement of the case that addressed emphysema as an issue being appealed in September 2010. The Veteran perfected his appeal in this case in September 2010. At that time he specifically withdrew the issue of entitlement to service connection for emphysema. Accordingly, the issue is withdrawn and not for appellate consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran submitted a VA Form 21-526, Veteran's Application for Compensation and/or Pension, in May 2009. At that time he alleged he had bilateral leg disabilities from his airborne training in service. On the form, the Veteran listed treatment for his legs from S. Smith, M.D., beginning in June 2008. He also submitted a statement from Dr. Smith who said that the Veteran's leg pain and swelling could possibly have come from his jumping school in service. The Veteran submitted a claim for service connection for a back disability in June 2009. At that time he said his legs and back hurt all through airborne training. He related one particular instance of making a night combat jump in the Dominican Republic. He said that he landed in a cow pasture and fell into a hole. He said he jarred his back and leg but went on without complaining. He noted that he was on disability for both his back and legs. Private medical records associated with the claims folder reflect that the Veteran was seen by Dr. Smith in July 2008. He was evaluated for peripheral arterial vascular disease. The Veteran was referred to C. Cunningham, M.D., in September 2008. Dr. Cunningham's initial impression was that the Veteran had evidence of significant peripheral arterial occlusive disease. After testing, it was determined that surgery on the left leg was necessary. The Veteran underwent a left femoropopliteal bypass in October 2008. The postoperative records note a good outcome and continued progress through entries dated in February 2009. The Veteran submitted several private medical records regarding his claimed back disability. The actual source of the records, as in a name for a medical practice, is not included. A magnetic resonance imaging (MRI) report from July 2004 noted a number of problems in the lumbar spine to include disc herniation at L4-L5 and L3-L4 and degenerative disc disease (DDD) at L1-L2, L3-L4, and L5-S1. The Veteran was treated for back pain August 2004. He received an epidural steroid injection (ESI) that same month. He continued to have back pain and radiculopathy. An entry from December 2004 noted that the Veteran was referred to an orthopedic surgeon for lumbar disc surgery but there are no further records in this regard. The Veteran served on active duty from June 1965 to June 1968. As noted, he is claiming the respective disabilities as being related to his military service to include as a result of his many parachute jumps in service. The Veteran received a Combat Infantryman Badge (CIB) for service in the Dominican Republic during 1965 and 1966. The Veteran's personnel records reflect that he did complete parachute training and was assigned to various units within the 82nd Airborne Corps during service. The records also contain documentary evidence to show 28 recorded jumps in addition to any other jumps made for training purposes. The Veteran has also alleged that he made a combat jump in the Dominican Republic. His DA Form 1307, Individual Jump Record, shows that he made four parachute jumps in the Dominican Republic. One was recorded as combat equipment/tactical in July 1966. The included service treatment records (STRs) are extremely limited and essentially provide only his entrance and separation physical examination reports. The Veteran reported a history of cramping in his legs at the time of his entrance physical in June 1965. He did not report this problem with his separation examination in May 1968. Both the entrance and separation examinations were negative for findings regarding either the legs or back. The Veteran testified as to his many parachute jumps in service in February 2011. He related how he hurt his back and leg on the night jump in the Dominican Republic. He said there was no one he could see for his problem at that time. He also said he did not run to the clinic with his complaints. He repeated these assertions in several lay statements. He also noted that he wore a heavy ruck sack and carried an M-60 machine gun in his training and general duties and was always running. The Veteran was not afforded an examination in this case. The Board finds that, in light of the Veteran's combat service, his clear demonstration of multiple parachute jumps in service and the ordinary duties associated with his military occupational specialty (MOS), a VA examination is in order. Further, the STRs associated with the claims folder are extremely limited. The lack of STRs themselves should not be held against the Veteran. Moreover, the absence of contemporaneous record entries is not dispositive of his claims, particularly those related to combat. In addition, although Dr. Smith was not very descriptive in his statement, he did say it was possible that the Veteran's leg pain and swelling, apparently associated with his peripheral arterial occlusive disease, could be do the parachute jumps in service. This is a further basis for concluding that the duty to provide an examination has been triggered. Finally, the Veteran provided a written statement wherein he said he was on disability for his back and legs. He also testified that he was receiving Social Security Administration (SSA) disability at his hearing. (Transcript p. 12). Those records must be requested and, if available, associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request that he identify the sources for all VA and non-VA health care providers who have treated him for his claimed disorders. After securing the necessary releases, obtain copies of pertinent records that are not already of record. 2. The RO/AMC should obtain from the SSA the administrative decision granting benefits and the medical records pertinent to the Veteran's claim for Social Security disability benefits. 3. Upon completion of the above development, the Veteran should be afforded a VA examination by a physician to address the issue involving his claim for service connection for a bilateral leg disability. The claims folder and a copy of this remand must be provided to the examiner and reviewed as part of the examination. All appropriate tests and studies deemed necessary should be performed with results included in the examination report. All clinical findings should be reported in detail. The examiner is advised that the Veteran contends that his claimed leg disabilities, to include peripheral arterial occlusive disease, are due to his many parachute jumps in service as well as the overall physical nature of his MOS as an infantryman in service. The Veteran has 28 parachute jumps confirmed in his personnel records. He participated in combat in the Dominican Republic and his records document four jumps there, to include a combat equipment/tactical jump in July 1966. The Veteran alleges he injured his legs in a night combat jump. The Veteran allegations must be accepted even in the absence of STR entries as it is combat related, consistent with his duties and not rebutted by clear and convincing evidence. The examiner is requested to identify any and all disorders of the both legs. The examiner is also requested to provide an opinion as to whether any identified disorder is related to the Veteran's military service. A complete rationale must be provided for any opinion expressed. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). (The United States Court of Appeals for Veterans Claims stated in Jones that the phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Jones, Id. at 390.) 4. The Veteran should also be afforded a VA examination by a physician to address the issue involving his claim for service connection for a back disorder. The claims folder and a copy of this remand must be provided to the examiner and reviewed as part of the examination. All appropriate tests and studies deemed necessary should be performed with results included in the examination report. All clinical findings should be reported in detail. The examiner is advised that the Veteran contends that his claimed back disability is due to his many parachute jumps in service as well as the overall physical nature of his MOS as an infantryman in service. The Veteran has 28 parachute jumps confirmed in his personnel records. He participated in combat in the Dominican Republic and his records document four jumps there, to include a combat equipment/tactical jump in July 1966. The Veteran has made specific allegations of a back injury during a night combat jump. His allegations must be accepted even in the absence of any STR entries as it is combat related, consistent with his duties and not rebutted by clear and convincing evidence. The examiner is requested to identify any and all back disorders that may be present. The examiner is further requested to provide an opinion as to whether it is at least as likely as not that any currently diagnosed back disorder can be related to the Veteran's military service. A complete rationale must be provided for any opinion expressed. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination. See Jones, supra. 5. The examination reports should be reviewed to ensure they are in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After undertaking any other development deemed appropriate, the RO/AMC should re-adjudicate the issues on appeal. If any benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the RO/AMC. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO/AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ MICHAEL MARTIN 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) (2012).