Citation Nr: 1241973 Decision Date: 12/07/12 Archive Date: 12/13/12 DOCKET NO. 09-05 583 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a left leg disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to June 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the appeal currently resides with the RO in Oakland, California. In August 2011, the Veteran testified at a video hearing before the undersigned Veterans Law Judge (VLJ) and a copy of the transcript of the hearing has been included in the claims file. 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 October 2011, the Board remanded the Veteran's claim for service connection for a left leg disability for additional development consisting of obtaining treatment records from 1976 to the present including records from the San Jose VA clinic and to provide a VA examination to determine the nature and etiology of all diagnosed left leg disabilities including the Achilles tendonitis and calcification diagnosed by the February 2008 VA examiner. The record shows that the Veteran was asked to identify any medical treatment he has received and was provided a VA Form 21-4142, Authorization and Consent to Release Information. The Veteran did not respond to the letter. The record does contain all VA treatment records from 1976 to the present from the Palo Alto VA Health Care System (which includes records from the San Jose clinic). In addition, updated VA treatment records were included in the claims file from the Palo Alto Health Care System which includes records from the San Jose clinic. Therefore, the Board's remand directive was completed. Stegall v. West, 11 Vet. App. 268 (1998). In accordance with the Board's remand, the Veteran was provided a VA examination in March 2012. The VA examiner reviewed the claims file and examined the Veteran. Following an examination of the Veteran, the diagnoses were listed as traumatic arthritis of the left knee (which is service-connected), osteoarthrosis of the left hip (which is service-connected), and hallux limitus of the left foot. The examiner stated that Achilles tendonitis was not found on examination. The examiner explained that: "His symptoms have resolved, and, indeed, this is less likely as not service related to his knees, hips, or back." The examiner opined that: ". . . the hallux limitus is not a result of his knee problems and he has this bilaterally thus it is less likely as not service related." In an addendum to the examination report dated in July 2012, the examiner opined that the hallux limitus and degenerative joint disease of the left MTP joint were aggravated by the Veteran's service-connected disabilities. In an August 2012 rating decision, the RO granted service connection for hallux limitus with degenerative changes. However, this is not a full grant of the benefits sought as the evidence of record contains other diagnoses related to the left leg. The RO did not issue a Supplemental Statement of the Case (SSOC) with respect to the issue of service connection for a left leg disability. 38 C.F.R. § 19.37 (2012). It appears that the RO mistakenly issued a SSOC with respect to claims for increased ratings, issues which have not been appealed by the Veteran and are not before the Board. Therefore, a remand is required for the RO to issue a SSOC with respect to the issue of service connection for a left leg disability (other than hallux limitus with degenerative changes). Finally, as the claim is being remanded for the issuance of a SSOC, the Board finds that clarification of the March 2012 VA examiner's opinion is required. The March 2012 examiner opined that the symptoms of Achilles tendonitis have resolved and, therefore, is less likely as not related to his knees, hips, or back. However, the Board finds that the March 2012 VA examiner's opinion is inadequate. In McClain v. Nicholson, 21 Vet. App. 319 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim." As there is evidence of Achilles tendonitis during the pendency of the claim, as shown by the February 2008 VA examination report, the examiner may not provide a negative nexus opinion on the basis that the symptoms have resolved at the time of the March 2012 VA examination. Therefore, the issue is remanded for a clarifying opinion. Accordingly, the case is REMANDED for the following action: 1. If possible, the claims file should be referred to the same examiner who conducted the March 2012 VA examination for a clarifying medical opinion. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left leg disability, to include the Achilles tendonitis with calcification, was caused or aggravated by his service-connected disabilities. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. The examiner is requested to provide an opinion as to any disability of the left leg or ankle that has been present at any point during the claim period (November 2007 to the present), regardless of whether it is currently diagnosed. See McClain v. Nicholson, 21 Vet. App. 319 (2007). A complete rationale should be given for any opinion provided. 2. If, and only if, the March 2012 VA examiner is unavailable, the Veteran should be provided a new VA examination to ascertain the nature and etiology of any left leg disability. The claims file should be made available to and reviewed by the examiner in connection with the examination. Any tests deemed medically advisable should be accomplished. The examiner should clearly note any current disability and respond to the following: For any left leg disability (other than hallux limitus with degenerative changes and left knee degenerative joint disease), the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the left leg disability was caused or aggravated by his service-connected disabilities. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. The examiner is requested to provide an opinion as to any disability of the left leg or ankle that has been present at any point during the claim period (November 2007 to the present), regardless of whether it is currently diagnosed. See McClain v. Nicholson, 21 Vet. App. 319 (2007). A complete rationale should be given for any opinion provided. 3. After completion of the above, the RO/AMC should review the record since the November 2009 Statement of the Case and determine if service connection may be granted. The Veteran and his representative should be furnished an appropriate SSOC and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. 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. 2012). _________________________________________________ ROBERT C. SCHARNBERGER 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).