Citation Nr: 1316368 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-11 148A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for right lower extremity injury residuals, to include degenerative disease of the right ankle and right hip, and right foot drop. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active duty from September 1950 to September 1953, and from December 1953 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In December 2012, the Board remanded the claim so that additional development of the evidence could be undertaken. The Veteran testified at a Travel Board hearing conducted at the RO by the undersigned Veterans Law Judge in October 2012. A transcript of this hearing has been associated with the Veteran's claims folder. 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 appellant if further action is required. REMAND As noted above, the Board remanded this claim in December 2012. At that time the Board noted that the Veteran submitted his claim for service connection for a "Right Leg Injury" in May 2007. See VA Form 21-526. Review of the Veteran's service treatment records shows that the Veteran incurred a left leg contusion as a result of falling from a telephone pole in June 1963. See Clinical Record Cover Sheet. A June 1963 treatment record showed that that physical examination of the Veteran was negative. Other service treatment records, dated later in June 1963, and in July 1963, note complaints of left leg pain. Review of the Veteran's May 1965 discharge examination shows that a lower extremity disorder (either right or left), or complaints of such a disorder, was not documented. The Board also in December 2012 reported that post service medical records associated with the Veteran's claims file, in the form of VA outpatient treatment records, include a December 2002 primary care physician note which shows complaints made by the Veteran of intermittent leg trouble since being involved in an accident in approximately 1962. He added he was in a coma at that time for about five days. Right foot drop, probably related to old injury, was diagnosed. The Board here notes that review of the Veteran's service treatment records, while showing that a syncopal attack caused him to fall from the telephone pole, make no mention of him being in a coma during his military service. A May 2005 VA nurse annual screen and education note shows that the Veteran complained of right leg pain. A November 2006 VA nursing note shows that the Veteran ambulated with a brace on his right leg. In the course of an August 2007 VA fee-basis examination ("QTC") the Veteran complained of a right leg condition since 1962. He informed the examiner this happened as a result of his falling from a telephone pole, at which time he injured his right leg. The Veteran was noted to require a cane to assist with ambulation due to right leg weakness with foot drop. Following the examination, the examiner diagnosed degenerative arthritis of the right tibia and fibula with right foot drop. The examiner is not shown to have had an opportunity to review the Veteran's claims folder (including his service treatment records). She also did not provide an opinion concerning the etiology of the right lower extremity findings. Other post service VA medical records on file include a February 2008 primary care physician note which includes a diagnosis of right ankle pain and swelling. The examiner, though not shown to have reviewed the Veteran's claims folder, commented that these findings were from an active duty injury. A June 2009 primary care physician note includes examination findings of right foot drop. The Veteran was noted to wear a brace. At the beginning of the October 2012 hearing, there appeared to be some confusion as to which leg the Veteran was alleging he injured as a result of a June 1963 fall. It was agreed that the right lower extremity was properly at issue. See pages two and three of hearing transcript (transcript). See also page five of transcript. The Veteran testified that he fell from a telephone pole in June 1963 when a safety belt broke. See page three of transcript. The Veteran added that right lower extremity symptoms associated with his in service fall first became manifested in about 2002. See page five of transcript. The Veteran's representative, in observing that the QTC examiner who performed the examination of the Veteran did not have the claims file to review, added that the examiner also did not, essentially, provide a nexus opinion. See page six of transcript. The Board, based on the above-presented evidence, and in finding that it remained unclear as to whether the Veteran had a current right lower extremity disorder which may be related to his military service, remanded the claim so that a clarifying medical opinion (pursuant to 38 C.F.R. § 3.159(c)(4)), could be obtained. As a result, the Board's December 2012 remand included the following developmental instruction: 1. The RO/AMC should forward the claim folder to the QTC physician who conducted the August 2007 VA fee-basis examination. After reviewing the claim folder, to include the Veteran's service treatment records, as well as any additional evidence associated with the record not previously reviewed by the QTC examiner, the physician should provide an opinion, with supporting rationale, as to whether the Veteran's right lower extremity problems, shown to have been diagnosed since 2002, are at least as likely as not causally or etiologically related to his active service, including as due to a June 1963 fall from a telephone pole. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions provided would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. In the event that the QTC physician who conducted the August 2007 VA fee-basis examination is unavailable, the RO/AMC should arrange for the appellant to be afforded a VA examination for the purpose of obtaining an opinion as to whether it is at least as likely as not that any disorders associated with the Veteran's right lower extremity, to include right foot drop, right tibia and fibula degenerative joint disease, and right hip degenerative joint disease -- shown to have been diagnosed since 2002 -- are causally or etiologically related to his active service, to include the Veteran's June 1963 fall from a telephone pole. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The requested opinion should be provided after the examiner has had an opportunity to review the Veteran's claims folder, to include the Veteran's service treatment records, and all post service medical records. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions provided would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. This examination was conducted in February 2013. Review of the examination report, which was completed by a physician other than who conducted the August 2007 "QTC" examination, shows that he supplied diagnoses - pertaining to knee and/or lower leg conditions -- of right foot drop, old lumbar compression fracture, severe lumbar spondylosis, and degenerative joint disease of the right ankle. The examiner mentioned that upon file review it was determined that the Veteran had in fact fell from a telephone pole during his military service on June 17, 1963. The Veteran's service treatment records support this statement. The examiner, a board certified orthopedist, opined that the Veteran's examination findings and history were most consistent with lumbar spinal stenosis. He added, however, that a diagnosis of lumbar spinal stenosis had not been confirmed, adding that "MRI" (magnetic resonance imaging) or "CAT" (computed axial tomography) was necessary to make this diagnosis. He added that the Veteran's medical history, neurologic examination, and X-rays of the Veteran were most consistent with a diagnosis of multilevel lumbar radiculopathy secondary to multilevel lumbar stenosis. The examiner also added, of particular note, that the Veteran's diagnosed old lumbar compression fracture was "most likely secondary" to his June 1963 in-service fall. The examiner essentially etiologically-related the Veteran's diagnosed right lower extremity problems to his in-service fall. He specifically related this disorders as being secondary to the Veteran's multilevel lumbar radiculopathies secondary to lumbar spinal stenosis. Essentially, the examining physician in February 2013 seemed to opine that the Veteran's claimed right lower extremity injury residuals were related to his nonservice-connected multilevel lumbar radiculopathies secondary to lumbar spinal stenosis (for which a diagnosis has not yet been verified). The Board construes this evidence as raising an inferred issue of entitlement to service connection for a lumbar spine disorder, to include multilevel lumbar radiculopathies and lumbar spinal stenosis. As such, the Board finds the Veteran's claim of service connection for right lower extremity injury residuals, to include degenerative joint disease of the right ankle and right hip, and right foot drop is impacted by the outcome of his claim for entitlement to service connection for a lumbar spine disorder and therefore, the service connection claims are inextricably intertwined. The United States Court of Appeals for Veterans Claims (Court) has held that all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the Veteran's service connection claims must be remanded to the Agency of Original Jurisdiction in accordance with the holding in Harris. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC must adjudicate the issue of entitlement to service connection a lumbar spine disorder. All appropriate procedures should then be followed, to include affording the Veteran an appropriate examination so that all diagnosed lumbar spine disorders (to include, lumbar spinal stenosis, if present) may be documented. The Veteran should be advised that, if he wishes to initiate an appeal of this issue (in the event the claim is denied), he must file a timely notice of disagreement following the issuance of a rating decision. 2. If service connection for a lumbar spine disorder is granted the RO/AMC must adjudicate the issue of entitlement to service connection for right lower extremity injury residuals, to include degenerative joint disease of the right ankle and right hip, and right foot drop, to include being due to or aggravated by a lumbar spine disorder. If service connection for right lower extremity injury residuals, to include degenerative joint disease of the right ankle and right hip, and right foot drop is granted no further development need be undertaken. 3. In the event that the Veteran is scheduled for another VA examination, the RO/AMC should notify him that it is his responsibility to report for any VA examination scheduled and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. The RO/AMC should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action is determined to have not been undertaken or to have been taken in a deficient manner, appropriate corrective action must be taken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the Veteran until he is notified. The appellant 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 Court 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 E. SULLIVAN 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).