Citation Nr: 1007448 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 07-39 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for peripheral vascular disease of the right lower extremity. 2. Entitlement to service connection for peripheral vascular disease of the left lower extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael J. A. Klein, Associate Counsel INTRODUCTION The Veteran had active service from February 1954 to July 1957. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran's claims for service connection for peripheral vascular disease of the right and left lower extremities. During the pendency of this appeal, jurisdiction of these claims was transferred to the RO in St. Petersburg, Florida. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. The VA will notify the appellant if further action is required. REMAND Before addressing the merits of the Veteran's claims for service connection for peripheral vascular disease of both the right and left lower extremities, the Board finds that additional development of the evidence is required. First, in his claim of August 2006, the Veteran stated that he was seen at the "VA medical at FT Pierce" in the year prior to making his claims for service connection. Later, in his notice of disagreement (NOD) the Veteran indicated that he was treated at the "Fort Pierce, VA Medical Center." In his August 2006 NOD, the Veteran requested that the AOJ obtain treatment records from this facility. A review of VA medical centers reveals that there is, in fact, a VA Medical Center (VAMC) named the Fort Pierce CBOC. There is no evidence in the file that the AOJ has made any attempt to contact the Fort Pierce VAMC. The VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) (West 2002). Specifically, the VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the VA to obtain. 38 U.S.C.A. § 5103A(c)(3). Furthermore, the Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67; Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The VA will end its efforts to obtain records from a Federal department or agency only if the VA concludes that such records do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159(c)(2) (2009). Examples of such a case include when the Federal department or agency advises the VA that the requested records "do not exist" or the "custodian does not have them." Id. As indicated above, the only currently operating VAMC which matches the Veteran's description is the VAMC designated as the Fort Pierce CBOC, which is currently located at: 727 North US 1, Ft. Pierce, FL 34950. The AOJ must make an attempt to obtain any records of treatment for the Veteran's lower extremity vascular disease from the VA facility which he has identified, if such records currently exist. If the AOJ concludes that such records do not exist or cannot be obtained, such attempt must be documented in the claims file. Second, the Board finds that additional development of the evidence is required in the form of a VA etiological examination and opinion. In disability compensation (service-connection) claims, the VA must provide a medical examination when there is evidence of a current disability and evidence connecting that current disability to the Veteran's active service, but insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The Veteran contends his current peripheral vascular disease of the right and left lower extremities are attributable to exposure to cold which he experienced while serving in Bangor, Maine. See the Veteran's claim of August 2006. The Veteran's DD Form 214 lists his military occupational specialty (MOS) as Airman Basic, and indicates that he performed at least part of his service at Dow Air Force Base, in Maine. The Board notes that the AOJ has made a number of attempts to retrieve records of the Veteran's service. See the AOJ's records requests from September 2006, August 2007. However, the National Personnel Records Center (NPRC) has indicated that the Veteran's records are unavailable, and has not been able to locate other records. See the NPRC responses of September 2006 and September 2007. The only evidence during service which the AOJ has been able to obtain is a security classification report dated in October 1956, indicating that the Veteran was stationed at Dow Air Force Base at that time. The United States Court of Appeals for Veterans Claims (Court) has mandated that the VA has a heightened duty to assist a claimant in developing his claim when the Veteran's service treatment records (STRs) are not available for any reason, including because they were destroyed in the fire at the NPRC in the early 1970s. This duty includes the search for alternate medical records, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit-of-the-doubt rule. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). Post-service, the first medical record which indicates a diagnosis of peripheral vascular disease of the right and left lower extremities dates from July 1989. The Veteran, and his spouse, have both indicated that they believe that his current peripheral vascular disease of the right and left lower extremities is due to exposure to cold while serving in Maine. See the Veteran's August 2006 claim, and the Veteran's spouse's statement dated in May 2007. There is no evidence presented that the Veteran or his spouse have the requisite training or experience necessary to render either of them competent to make such a determination. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(1). Therefore, there is evidence of peripheral vascular disease of the right and left lower extremities, but insufficient evidence for the Board to conclude that the Veteran's vascular disease is connected to his military service. The standard for requiring a VA medical examination is "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." See McLendon, at 81. As such, the standard for requiring a VA medical examination is quite low. Therefore, based on the evidence of record and the Court's decision in McLendon, as well as the heightened duty which is required when the VA is unable to obtain a Veteran's STRs, a VA medical examination and opinion are needed to determine whether the Veteran's current peripheral vascular disease of the right and left lower extremities may be connected to his military service, and in particular to his alleged in-service exposure to cold. Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the Veteran to identify all health care providers that have treated him for his peropheral vascular disease since his release from service to the present. The AOJ should attempt to obtain records from each health care provider he identifies that might have available records. In particular, the AOJ should obtain any treatment records from the Fort Pierce VA Medical Center. If the records are not available or do not exist, a reply to that effect is required and must be associated with the claims folder. 2. Then, arrange for the Veteran to undergo a VA medical examination to determine whether his peripheral vascular disease of the right and left lower extremities is related to his active service. He is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences on this claim. The examination should include any diagnostic testing or evaluation deemed necessary. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent history. The examiner must make clear in the report that such a review was accomplished. Based on the test results and review of the claims file, the examiner should indicate whether it is at least as likely as not that the Veteran's current peripheral vascular disease of the right and left lower extremities are the result of his military service - and, in particular, due to any exposure to cold which he may have experienced during service. Finally, the examiner should comment on the likelihood that the Veteran's current disorders are due to post-service intercurrent causes, wholly unrelated to his military service. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion - such as causation, is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible or feasible. 3. Then, review the Veteran's claims file and any new information obtained to ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further adjudication of the claim. 4. Then, readjudicate the claims for service connection for peripheral vascular disease of the right and left lower extremities in light of any additional evidence obtained since the December 2007 supplemental statement of the case (SSOC). If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of the claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2009). _________________________________________________ A. BRYANT 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) (2009).