Citation Nr: 1300538 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 06-10 650 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for peroneal nerve palsy with left foot drop (claimed as peripheral neuropathy of the bilateral arms and legs), to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to March 1970; he served in the Republic of Vietnam from April 1969 to March 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2005 rating decision in which the RO, inter alia, denied service connection for peripheral neuropathy of the arms and legs, to include as due to exposure to herbicides. In June 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2006. In March 2009, the Board denied service connection for peroneal nerve palsy with left foot drop (claimed as peripheral neuropathy of the bilateral arms and legs), to include as due to exposure to herbicides. In April 2009, the Veteran filed a motion for reconsideration of the Board's decision. See 38 C.F.R. §§ 20.1000, 20.1001. The motion for reconsideration was granted in October 2009, by a Deputy Vice Chairman of the Board. In November 2009, the Board vacated its March 2009 decision and entered a new decision denying the Veteran's claim. The Veteran appealed the November 2009 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2011 Memorandum Decision, the Court vacated the Board's denial of the claim for service connection, and remanded the matter to the Board for further proceedings consistent with the Memorandum Decision. In March 2012, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After taking further action, the AMC continued to deny the claim (as reflected in an October 2012 supplemental SOC (SSOC)) and returned this matter to the Board for further appellate consideration. For the reasons expressed below, the matter on appeal is again being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Review of the claims file reveals that the development directed in the March 2012 remand was not fully completed. In the March 2012 remand, the Board instructed the RO/AMC, among other things, to arrange for the Veteran to undergo VA neurological examination for purposes of obtaining an opinion as to whether it was at least as likely as not (i.e., there was a 50 percent or greater probability) that the Veteran had one or more neurological disabilities of the lower extremities that had its onset in, or was otherwise medically related to, service, to particularly include presumed in-service exposure to herbicides. In rendering the opinion, the examiner was to specifically consider and discuss, in addition to the medical and other evidence of record, the lay statements of record, and the Veteran's assertions as to in-service symptomatology and continuity of neurological symptoms since service. A complete rationale for the opinion was to be provided. A review of the record reveals that the AMC arranged for the examination and opinion, as requested. In an April 2012 report, a VA physician opined that the Veteran had neuropathy of his lower extremities, and that it was at least as likely as not related to service. In support of the opinion, the physician noted that the Veteran started having numbness and a burning sensation in the toes and bottom of the feet when he was 21 years old (i.e., during service), and that it had been progressively worsening ever since. Significantly, however, the evidence of record does not support the premise that the Veteran has suffered continuity of neurological symptomatology ever since service. To the contrary, by the Veteran's own description, his symptoms disappeared for a time after service, and then returned in the late 1970s or early 1980s. See Statement in Support of Claim, dated in November 2004. In addition, the examiner did not discuss the medical significance, if any, of the clinical evidence of record. No mention was made of the Veteran's March 1970 service separation examination, for example, the report of which reflects that the Veteran's upper and lower extremities and neurological system were then found to be normal. Nor was there any mention of records of the Veteran's private hospitalization in September and October 1997, which, while showing that the Veteran underwent a full physical and neurological examination, are devoid of any findings relative to peroneal nerve palsy or other neurological disorder of the extremities; or of VA treatment records dated in December 1997, March 1998, August 2003, and October 2004, which contain no neurological findings beyond those attributed to a cerebrovascular accident in September 1997. Accordingly, the RO should return the record on appeal to the April 2012 VA physician for a supplemental report. If the physician who provided the April 2012 opinion is unavailable, the RO should arrange for another appropriate VA physician to provide the necessary information. Prior to arranging for clarification of the April 2012 VA medical opinion, to ensure that all due process requirements are met, and that the record is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. Records of the Veteran's treatment through the VA Medical Center (VAMC) in West Palm Beach, Florida were last associated with the Veteran's electronic (Virtual VA) claims file on April 4, 2012. Hence, more recent medical records from this facility may exist. 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 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facility all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran since April 4, 2012. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. As indicated, the RO's adjudication of the claim must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claim. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the West Palm Beach VAMC any outstanding, pertinent records of evaluation and/or treatment of the Veteran since April 4, 2012. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. The RO should furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and the representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received have been associated with the claims file, the RO should forward the entire record on appeal, to include a complete copy of this REMAND, to the April 2012 VA physician for a supplemental report. Specifically, the examiner should discuss the medical significance, if any, of the Veteran's statement to the effect that his reported neurological symptoms disappeared for a time after service, and then returned in the late 1970s or early 1980s. The examiner should also discuss the medical significance, if any, of the records of the Veteran's private hospitalization in September and October 1997, which, while showing that the Veteran underwent a full physical and neurological examination, appear to not contain any findings of peroneal nerve palsy or other neurological disorder of the extremities; and of VA treatment records dated in December 1997, March 1998, August 2003, and October 2004, which appear to contain no neurological findings beyond those attributed to a cerebrovascular accident in September 1997. The entire record on appeal, to include a complete copy of the REMAND, must be made available to the examiner, and the addendum report should include discussion of all relevant documented history and assertions. If the physician who provided the April 2012 opinion is unavailable, the RO should arrange for another appropriate VA physician to provide the necessary information. The physician should set forth all conclusions, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal in light of all evidence (to particularly include all that added to the claims file since the RO's last adjudication of the claim) and legal authority. 7. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).