Citation Nr: 1300697 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 07-01 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a disability of the eyes (other than presbyopia), to include xerophthalmia, dry eye syndrome, and light sensitivity (claimed as residuals of an eye injury). 2. Entitlement to service connection for residuals of a left foot injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to February 1973 and from August 2002 to August 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2006 and May 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2009 and again in September 2011, the Board remanded these issues for additional development, In September 2008, the Veteran testified at a video conference hearing in Nashville, Tennessee, over which the undersigned Acting Veterans Law Judge presided at Washington, D.C. A transcript of the hearing has been associated with the claims folders. In August 2009 and again in September 2011, the Board referred to the agency of original jurisdiction (AOJ) claims of service connection for myeloma due to exposure to Agent Orange and a toe disability of the left foot including secondary to the Veteran's service-connected left thigh injury. Despite these two referrals, no further action has been taken on these claims since the first 2009 referral. Therefore, they are once again referred to the AOJ for appropriate action. 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 As to all the issues on appeal, following the issuance of the March 2011 supplemental statement of the case (SSOC) the RO obtained and associated with the record treatment records from the Tennessee Valley VA HealthCare System dated from November 2009 through May 2012. Likewise, while the appeal was in remand status, the Veteran was afforded a VA examination in December 2011 along with an addendum to that examination in September 2012. The Board finds that these treatment records and examinations are additional pertinent evidence. However, the September 2012 SSOC did not include a citation to or a discussion of the VA treatment records. See, for example, 38 C.F.R. § 19.37 (2012). Likewise, the September 2012 SSOC did not include a citation to or a discussion of both the December 2011 VA examination and the September 2012 addendum. Therefore, the Board finds that a remand is required to provide the Veteran with another SSOC that discusses the additional pertinent evidence found added to the claims file since the March 2011 SSOC. See 38 C.F.R. § 19.31 (2012) (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). As to the claim of service connection for residuals of a left foot injury, while the post-remand VA examiners raised the theory of secondary service connection, the record does not show that the Veteran was provided 38 U.S.C.A. § 5103(a) (West 2002) compliant notice of the laws and regulations governing secondary service connection. Likewise, the record does not show that he was provided notice in a SSOC of these laws and regulations. See 38 C.F.R. § 3.310 (2006), 38 C.F.R. § 3.310 (2012). See 38 C.F.R. § 19.31. Therefore, a remand to provide the Veteran with this notice is also required. As to the claim of service connection for residuals of a left foot injury, the Board most recently remanded the issue in September 2011 to obtain a medical opinion as to its origins or etiology. However, while the post-remand record shows that VA obtained medical opinions in December 2011 and September 2012, the Board finds these opinions inadequate. The Board has reached this conclusion because, while the December 2011 VA examiner opined that the Veteran's current left foot disorders were caused by his service-connected left thigh disorder, he failed to provide any supporting clinical data or other rationale in support of his opinion. See Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence). Similarly, while in the September 2012 addendum the examiner opined that the Veteran's current left foot disorders were not caused by his service-connected left thigh disorder, he did not provide an opinion as to whether the service-connected left thigh disorder aggravated any of his current left foot disorders. See 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995) (holding that compensation is payable when a service-connected disability has aggravated a nonservice-connected disorder). Therefore, the Board finds that another remand for an adequate VA examination is required. See 38 U.S.C.A. § 5103A(d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Finally, the Board notes that the Veteran receives ongoing treatment from the Tennessee Valley VA HealthCare System. However, his post-May 2012 treatment records do not appear in the claims file. Therefore, while the appeal is in remand status these records should be obtained and associated with the record. See 38 U.S.C.A. § 5103A(b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Accordingly, the appeal is REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should obtain and associate with the claims file the Veteran's post-May 2012 treatment records from the Tennessee Valley VA HealthCare System. All actions to obtain the requested records should be documented fully in the claims file. 2. The RO/AMC should provide the Veteran with notice of the laws and regulations governing secondary service connection. 38 U.S.C.A. § 5103(a); Dingess v. Nicholson, 19 Vet. App. 473 (2006). 3. After undertaking the above development to the extent possible, the RO/AMC should provide the Veteran with a VA examination by an appropriate medical doctor to obtain an opinion as to the relationship, if any, between any of the Veteran's current left foot disorders and his service-connected left thigh disorder. The claims file should be provided to the examiner in connection with the examination. The examiner should conduct all indicated tests and studies. After a review of the record on appeal and an examination of the claimant, the examiner should provide answers to the following questions: a. What are the diagnoses of the Veteran's post-service left foot disorders? b. Is it at least as likely as not (50 percent probability or more) that any of the Veteran's post-service left foot disorders were caused by his service-connected left thigh disorder? c. Is it at least as likely as not (50 percent probability or more) that any of the Veteran's post-service left foot disorders were aggravated by his service-connected left thigh disorder? In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptoms of his disability. If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. In providing answers to the above questions, the examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 4. The RO/AMC should thereafter readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a SSOC. The SSOC must contain notice of all relevant actions taken on the claims for benefit since the March 2011 SSOC, to include citation to and discussion of all post-November 2009 treatment records from the Tennessee Valley VA HealthCare System and the December 2011 VA examination and September 2012 addendum, and any evidence not received, and all applicable laws and regulations considered pertinent to the issues currently on appeal including old and new 38 C.F.R. § 3.310. A reasonable period of time should be allowed for response before the appeal is returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2011). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).