Citation Nr: 1318469 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 08-06 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a back injury. 2. Entitlement to service connection for bilateral knee injury. 3. Entitlement to service connection for numbness of both legs. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION 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 Veteran had active military service from August 1942 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In July 2008, the veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided at the RO, a transcript of which has been associated with the claims folder. In September 2008 and December 2009, the Board remanded the claims for additional development and to address due process concerns. In the December 2009 decision, the Board also granted service connection for bilateral hearing loss. By a January 2010 rating decision, the Appeals Management Center (AMC) implemented the award of service connection for bilateral hearing loss. Thereafter, in April 2011, the Board requested a medical expert opinion pursuant to 38 C.F.R. § 20.901 (2012); this opinion was received in June 2011. In January 2012, the Board denied the service connection claims for back and bilateral knee injuries, and remanded the service connection claim for numbness of the legs for further development. In the interim, the Veteran appealed the January 2012 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand ("Joint Motion"), the Court, in June 2012, vacated the January 2012 denials of service connection for back and bilateral knee injuries. 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 In the 2012 Joint Motion, the parties agreed that a remand is necessary to ensure that VA complies with the duty to assist the Veteran in obtaining relevant records, and to ensure compliance with the remand instructions contained in the Board's December 2009 remand decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with a remand directive, and the Board itself commits error as a matter of law in failing to ensure compliance.). VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim. 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2012). VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and those documents are constructively part of the record before the Board. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran testified that the he first went to the VA Medical Center (VAMC) in Shreveport, Louisiana, for back treatment in the 1950's. In the December 2009 remand, the Board requested that the RO/AMC obtain all of the Veteran's VA medical treatment records dating from the 1950s to the present from the Louisiana facilities in Shreveport, Jennings, and Alexandria. The Shreveport VAMC responded in April 2010 by forwarding records from 2002 to 2005 under a cover letter that stated that a determination had been made to disclose the information per your request in full. However, the Joint Motion noted that the cover letter is actually a form letter and importantly contained no information whether any records going back to 1950 relating to the Veteran exist, whether the records were searched for, and whether further efforts to obtain the records would be futile. Additionally, while some records from the Jennings VA Outpatient Clinic (OPC) were received, it was also noted that the record does not contain any written response from the Jennings OPC relating to the December 2009 records request. Similarly, there is no indication that such facility searched for any of the Veteran's records dating back to 1950, whether such records exist, and whether further efforts to obtain the records would be futile. The current record contains no VA treatment record dated prior to 1989. In light of the 2012 Joint Motion, the Board is remanding the case to make an additional request for the identified VA records. Any additional VA medical records received might help to substantiate the claims in that they could show earlier treatment for the Veteran's low back, as well as his knees and/or numbness of the legs. The Board notes further that the Veteran's claim of entitlement to service connection for numbness of the legs has since returned after being remanded in January 2012 for an additional VA examination by a neurologist to determine the current nature and etiology of any disability productive of numbness of the legs. During this examination, which took place in September 2012, the Veteran gave a history of having sustained injury to his back during service in 1944 and having noticed numbness in his legs two years later. Under the "remarks" section of the examination report, the September 2012 examiner stated that it is likely that the Veteran developed degenerative disc and joint disease of the low back after the in-service injury. The examiner also determined that the Veteran's leg numbness is likely due to the in-service back injury and later worsened due to superimposed diabetic peripheral neuropathy. However, the Board finds the underlying rationale for these opinions to be unclear and therefore inadequate. First, the VA examiner's opinion relating the Veteran's current back disability to the in-service injury was not reconciled with the April 2009 VA opinion and the June 2011 independent medical opinion. While the 2012 VA examiner indicates that the Veteran developed stenosis after the in-service back injury, the April 2009 and June 2011 physicians determined that the Veteran's low back arthritis was diagnosed decades after service due to the normal aging process. Second, although the examiner currently diagnosed the Veteran with diabetic peripheral neuropathy, he refers to him having prior numbness of the legs but does not indicate the specific disability. The record shows that the Veteran was not diagnosed with diabetes, a nonservice-connected disability, until 1989; hence, it necessarily follows that diabetic peripheral neuropathy could not have been diagnosed prior to that date. Thus, the evidence is still unclear as to the type of neurologic disorder the Veteran had in his legs prior to his diabetic peripheral neuropathy. Further medical comment is therefore needed prior to analyzing the low back and numbness claims on the merits. 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. Make arrangements to obtain the Veteran's VA treatment records from the Jennings OPC, dated from the 1950s to 1997 and from September 2010 forward; from the Shreveport VAMC, dated from the 1950s to 2002 and from February 2005 forward; and from the Alexandria VA treatment facility, dated from November 2009 forward. The Jennings and Shreveport facilities must specifically indicate whether they searched for records dating back to 1950. If any such records have been sent to storage, arrangements should be made to retrieve them. If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile. 2. Thereafter, the claims file should be returned to the examiner who conducted the September 2012 VA examination for an addendum. The examiner is asked to respond to the following: a. Clarify the exact nature of the Veteran's disorder productive of numbness in the legs, prior to his diagnosis of diabetic peripheral neuropathy. To the extent possible, a specific diagnosis should be provided with an explanation as to the type of etiology of the underlying condition; i.e., vascular, peripheral nerve disease, compression injury; proximal nerve root compression, etc. Then, please state whether it is at least as likely as not (i.e., 50% or greater probability) that the disorder had its clinical onset during active service or is related to any in-service event, disease or injury, to include the Veteran's reports of having to wear legging support equipment during the invasion of Normandy in June 1944. b. Clarify whether it is at least as likely as not (i.e., 50% or greater probability) that the Veteran's current low back disorder had its clinical onset during active service or is related to any in-service event, disease or injury, to include when he was struck in the back with a mail bag. The examiner must reconcile his opinion(s) with all evidence of record, specifically to include the April 2009 VA opinion, the June 2011 independent medical opinion, and his own September 2012 medical opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. It therefore is imperative the examiner have opportunity review or refamiliarize himself with the evidence in the claims file, including a complete copy of this remand. If, for whatever reason, this examiner is no longer available to provide this additional comment, then obtain it from someone else qualified to make this necessary determination. In this eventuality, however, the Veteran may need to be reexamined, but this is left to the designee's discretion. 3. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 4. Finally, after undertaking any other development deemed appropriate, re-adjudicate the service connection claims on appeal. If the benefits sought are not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. 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). 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). _________________________________________________ P. M. DILORENZO 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).