Citation Nr: 1300329 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 07-09 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for pain and weakness in the lower extremities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to August 1972, and from April 1973 to July 1978. This case comes before the Board of Veteran's Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Jurisdiction was subsequently transferred to the RO in Winston-Salem, North Carolina. In November 2010, the Board remanded the claim for service connection for pain and weakness in the lower extremities for additional development. The case has since returned to the Board for further appellate action. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain a fully adequate examination. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A central issue in determining the adequacy and persuasiveness of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The Veteran contends that he is entitled to service connection for a disorder manifested by pain and weakness in the lower extremities, as he alleges that these symptoms began in service and he has experienced chronic lower extremity pain and weakness since service. The Veteran's service treatment records do not reflect any complaint, finding, or diagnosis with respect to pain or weakness of the lower extremities. After the Veteran's discharge from service, a private treatment report dated in December 1978 reflects that the Veteran presented with complaints of pain and weakness in the legs. He reported that he first noticed the condition 1 year prior and left service because he felt that he could no longer perform his duties to a satisfactory level. A physical examination revealed normal reflexes and sensation of the lower extremities. He had difficulty with sustained toe walking and exhibited extremity weakness. The report does not discuss a possible diagnosis or etiology of the complaints. Various treatment records reflect that the Veteran continued to complain of lower extremity weakness and pain over the years. The Veteran underwent a variety of tests to determine whether these symptoms were attributable to multiple sclerosis; however, this diagnosis was ruled out. While the majority of these records fail to provide any etiology of the Veteran's lower extremity complaints, an October 2005 private treatment report includes an assessment of peripheral neuropathy. However, there was no indication in this report that this diagnosis was confirmed through studies or examination, further neurological examinations have consistently revealed largely normal findings, and peripheral neuropathy has not otherwise been found. A VA examination was conducted in December 2010. After review of the claims file, a discussion of the Veteran's symptoms, and physical examination, the examiner noted an impression of lower extremity pain and weakness of unknown etiology. However, the examiner failed to address the previous diagnosis of peripheral neuropathy found in the October 2005 private treatment report. Nor does the examination report indicate that a complete neurological examination was performed to confirm or rule out this diagnosis. For the reasons expressed, the medical opinion evidence currently of record is inadequate. Therefore, the Board finds that additional action to obtain the required medical opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to ascertain the current nature of his complaints of pain and weakness in the lower extremities. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies-to specifically include a complete neurological examination of the lower extremities-should be accomplished and all clinical findings should be reported in detail. The examiner should specifically indicate whether a diagnosis of peripheral neuropathy of the lower extremities or any other diagnosis is appropriate. Then, with respect to each diagnosed disability, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the disability had its onset in or is otherwise etiologically related to service. In providing the requested opinion, the examiner is asked to consider and address the pertinent post-service findings of lower extremity pain and weakness shortly after discharge, as well as the Veteran's statements regarding the onset of pain and weakness in the lower extremities in service and chronic lower extremity symptoms since service. A complete rationale should be provided for any opinions expressed. If an opinion cannot be provided without resort to speculation, it must be noted in the report, and a rationale provided for that conclusion. 2. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). _________________________________________________ K. MILLIKAN Acting 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).