Citation Nr: 1301220 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 12-29 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a bilateral leg and foot disorder (claimed as swollen lower legs, right more than left, with loss of feeling in both feet and loss of hair bilaterally), to include as due to in-service herbicide exposure. ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1946 to March 1972, to include a tour in the Republic of Vietnam on land. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied the benefit sought on appeal. The Veteran's Virtual VA records were also reviewed and considered in preparing this remand. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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 Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim can be properly adjudicated. Initially, on a VA Form 21-4142 dated in April 2011, the Veteran stated that he received treatment at the U.S. Naval Hospital in Rota, Spain, for the claimed disorder on appeal since 1972. The RO made one attempt to obtain these records in December 2011. No response was received, and the RO did not make further attempts to obtain the records. The United States Court of Appeals for Veterans Claims (Court) has determined that if all relevant military treatment records have not been obtained, that may be a breach of the duty to assist and grounds for remand. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1) (West 2002); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005). The Board finds that these records are relevant to the Veteran's appeal, and thus the RO/AMC must make further attempts to obtain these records. Second, in the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2012). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record: (1) contains competent evidence that the claimant has a current disorder, or persistent or recurrent symptoms of a disorder, and (2) indicates that the disorder or symptoms may be associated with the claimant's active military, naval, or air service, but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id.; see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between the current disorder and the active military service is low for the purposes of obtaining a medical opinion. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Here, regarding a current diagnosis, since filing his claim in September 2010, the medical records do not include a current diagnosis pertaining to the Veteran's legs and/or feet. However, throughout his appeal, the Veteran has described swelling, loss of use, loss of hair, and numbness in his legs and feet. The Veteran is competent as a layperson to attest to these factual matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Regarding an in-service incurrence, the Veteran's service treatment records (STRs) do not contain any relevant complaints of or treatment for his legs or feet. However, the Veteran's personnel records demonstrate that he served on active duty from March 1946 to March 1972, to include a tour on land in the Republic of Vietnam during the Vietnam War. Thus, he is presumed to have been exposed to herbicides during his active military service. 38 C.F.R. § 3.307(a)(6)(ii) (2012). To date, the Veteran has never been afforded a VA examination and medical opinion for this claim. Since the claims file contains evidence of a current disorder and an in-service incurrence, the Board finds that a remand is required in order to afford the Veteran a VA examination to determine the nature and etiology of his claimed bilateral leg and foot disorder. McClendon, 20 Vet. App. at 86. The Veteran is hereby notified that it is his responsibility to report for these examinations and to cooperate in the development of the case, and that the consequences of 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). Finally, the most recent outpatient treatment records from the VA Medical Center (VAMC) in Miami, Florida, are dated from February 2011. On remand, all pertinent records since this date should be obtained and added to the claims file. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1); Loving, 19 Vet. App. at 101-03. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all pertinent treatment records from the U.S. Naval Hospital in Rota, Spain, dated since 1972. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 2. Obtain all pertinent VA outpatient treatment records from the VAMC in Miami, Florida, since February 2011 that have not been secured for inclusion in the record. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 3. After obtaining the above records, the RO/AMC shall schedule the Veteran for a VA examination with an appropriate expert to determine the nature and etiology of his claimed bilateral leg and foot disorder (claimed as symptoms of hair loss, numbness, loss of use, and swelling). The VA examiner should thoroughly review the Veteran's VA claims file, to include his STRs, as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: a) Does the Veteran have a current diagnosis related to his legs and/or feet? (b) If the VA examiner finds that the Veteran has a diagnosed disorder(s), the examiner should provide an opinion as to whether it is at least as likely as not that any currently diagnosed disorder had its onset during the Veteran's active duty, within one year of active duty, or whether such disorder is otherwise related to the Veteran's military service, to include as due to his presumed in-service herbicide exposure. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. In forming his or her opinion, the examiner is asked to consider the Veteran's lay statements regarding the progression of the disorder, and comment on whether the Veteran's statements make sense from a medical point of view. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The VA examination report prepared must be typed. 4. After the above actions have been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran a Supplemental Statement of the Case (SSOC). Afford him the appropriate period of time within which to respond thereto. The Veteran 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 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). _________________________________________________ WAYNE M. BRAEUER 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).