Citation Nr: 1125801 Decision Date: 07/08/11 Archive Date: 07/15/11 DOCKET NO. 07-20 808A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a left lower extremity disorder, to include as secondary to service-connected lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1951 to October 1954 and from July 1955 to August 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a left lower extremity disorder. The Veteran timely appealed that denial. This case was initially before the Board in March 2009 when the Board remanded the case for further development. Subsequently, the case was returned to the Board in December 2009, at which time the Board denied service connection for a left lower extremity disorder. The Veteran timely appealed the Board's December 2009 denial to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand, the Secretary for the Department of Veterans Affairs (Secretary) and the Veteran agreed to remand the case back to the Board for further development. The Court issued a July 2010 Court Order vacating the Board's December 2009 decision and remanding the case back to the Board for compliance with the Joint Motion for Remand. The case has been returned to the Board at this time in compliance with that July 2010 Court Order. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 In the Joint Motion for Remand, it was noted that the Board failed to assure compliance with its March 2009 remand instructions prior to denying the claim in December 2009. Specifically, it noted that the August 2009 VA examiner did not give a rationale for his opinion that the Veteran's left lower extremity disorder was due to his diabetic peripheral neuropathy rather than service, and that he also did not give an opinion as to aggravation by the Veteran's service-connected lumbar spine disability, as instructed by the March 2009 Board remand. The Board notes that the opinion provided by the August 2009 VA examiner is not adequate in this case and that a remand is necessary in order to fully comply with the March 2009 Board remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Additionally, on remand, the Veteran should be asked for information regarding any private or VA treatment he has received since February 2006. Any identified records should be obtained and associated with the claims file on remand. See 38 U.S.C.A. § 5103(b), (c) (West 2002); 38 C.F.R. § 3.159(c) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Obtain any relevant VA treatment records from the Worchester, Massachusetts VA Medical Center, or any other VA medical facility which may have treated the Veteran, since February 2006 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his left lower extremity since February 2006. After securing the necessary release forms, attempt to obtain and associate any identified records with the claims file. If those identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be so notified so that he can make an attempt to obtain those records on his own behalf. 3. Following the completion of the above to the extent possible, schedule the Veteran for VA neurological examination in order to determine whether the Veteran's claimed left lower extremity disorder is related to service or to his service-connected lumbar spine disability. The claims file must be made available to and be reviewed by each of the examiners in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner is asked to diagnose any left lower extremity disorder found, including diabetic peripheral neuropathy or radiculopathy. The examiner should then opine whether any left lower extremity disorder found more likely, less likely or at least as likely as not (50 percent for greater probability) is the result of military service, including his in-service injury for which he has already been service-connected for his lumbar spine disability. The examiner should specifically address the August 2009 VA examination which related the Veteran's current left lower extremity symptomatology to his diabetic condition. If the Veteran's left lower extremity disorder is not related to military service, the examiner should opine whether the Veteran's service-connected lumbar spine more likely, less likely or at least as likely as not caused the Veteran's left lower extremity disorder. The examiner should address the numerous clinical records, particularly from the 1990's, which demonstrate that the Veteran was diagnosed with radicular symptomatology at that time. If the Veteran's left lower extremity disorder is not caused by the Veteran's lumbar spine disability or is related to the Veteran's diabetic condition, the examiner must opine whether the Veteran's left lower extremity disorder is aggravated beyond the normal progression of that disorder by the Veteran's service-connected lumbar spine disability. The examiner should specifically address Dr. A.L.'s January 2007 letter in conjunction with any opinion on aggravation. For any aggravation found, the examiner should state, to the best of his/her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. VA should send the Veteran a letter noting the scheduled time and place for the VA examination and a copy of that letter should be placed in the claims file. The Veteran is hereby notified that a failure to report to this examination will result in a decision being made on the current evidence of record. If the Veteran fails to report for this examination, the RO/AMC should forward this case to an appropriate examiner for an opinion as to the above questions on the basis of the evidence of record. 4. Following the above development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of service connection for a left lower extremity disorder, to include as secondary to his service-connected lumbar spine disability. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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. 2010). _________________________________________________ CHERYL L. MASON 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) (2010).