Citation Nr: 1319286 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 04-30 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for right and left leg disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. He is the recipient of the Combat Infantryman Badge and the Purple Heart. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from December 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In that decision, the RO denied the claim of entitlement to service connection for arthritis of the legs. This matter was previously before the Board in October 2002, April 2008, August 2010, and July 2012. The Board subsequently remanded the claim for additional development each of those times. The appeal has once again returned to the Board for appellate review. The Veteran testified at a hearing before a Veterans Law Judge, sitting at the RO, in April 2010. In February 2012, the Board informed the Veteran that the Veterans Law Judge that had conducted his hearing was no longer employed by the Board and advised him that he was entitled to another hearing. That same month, the Veteran responded that he did not wish to appear at another hearing and to consider his case on the evidence of record. As noted in the last Board remand, the issue of entitlement to an effective date prior to December 8, 2004 for the grant of entitlement to service connection for posttraumatic stress disorder was raised at the April 2010 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is 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 Veteran if further action is required. REMAND Regrettably, the Board's review of the record from after the July 2012 remand indicates that another remand is necessary. The Board apologizes to the Veteran for the continued delay of the resolution of his claim. The purpose of that remand was to obtain up-to-date VA treatment records and to schedule a VA examination. The VA treatment records were associated with the claims file, and the examination was performed in July 2012. However, the examination was not compliant with the Board's remand orders. The law mandates that where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends that he has a bilateral leg disability related to his military service, including injuries sustained to both thighs from grenade shrapnel. Despite the lengthy procedural and medical history of this claim, there remain questions as to both the existence and etiology of the Veteran's claimed right and left leg disabilities. Service treatment records document a shell fragment wound to the left knee in October 1969. Post-service medical evidence also documents various findings regarding the Veteran's legs. In June 1970, a VA examiner noted that the Veteran had scars on the left thigh, but that there appeared to be no muscle damage or loss. An X-ray taken at that time found a normal left thigh. A December 1999 VA examiner found the Veteran to have shrapnel scars on both thighs and minimal degenerative joint disease of the knees and hips, as shown by X-ray. In April 2005, a VA examiner diagnosed a shrapnel injury to the left inner thigh with minimal scar formation and noted the Veteran's complaints of weather-related pain to the left hip, lower leg and knee. The VA examiner found no relationship between the Veteran's shrapnel injury and his intermittent complaints of pain in the left knee, left hip, and left lower leg. However, no rationale for the opinion was offered. The Veteran was also examined by a private physician in April 2005. The physician found that the Veteran's musculoskeletal somatic dysfunction had a multifactorial etiology, including the service-related trauma and the prior and subsequent traumatic injuries noted in the Veteran's history. In response to the Board's April 2008 remand, a VA examination was performed in April 2008, at which the Veteran denied having any leg problems, other than his superficial shrapnel injuries. The examiner diagnosed him with shrapnel injuries to the lower legs with residuals of scars without functional limitations. In the August 2010, the Board found that the April 2008 VA examination was inadequate on the basis that the examiner did not provide the opinion requested in the April 2008 remand. Additionally, the Board noted that the VA examiner did not perform X-rays, which the Board had found necessary given that degenerative joint disease was found in December 1999. Accordingly, the appeal was again remanded for a VA examination. The next VA examination was performed in October 2010. The report includes recent X-rays of the bilateral hips that did not reveal any fracture, dislocation, bone destruction, or joint space abnormality. The examiner opined that it is likely that the etiology of his bilateral leg disorder is minimal degenerative joint disease not radiologically detectable on recent X-rays. The examiner further noted that the Veteran has several risk factors for developing degenerative joint disease of the bilateral hips, including but not limited to, age, obesity, and an occupation involving exertional activities (construction work, etc). The examiner stated that the etiology of the bilateral leg disorder could not be attributed solely to his service related activities without resort to mere speculation. However, this examination did not comply with the Board's orders in the August 2010 remand. Specifically, the examiner seemed to limit the examination to consideration of a disability of the hips and did not consider whether the Veteran had a disability of the knees that was a result of military service. Further, no X-rays were taken of the knees. In light of these deficiencies of the October 2010 VA examination, the appeal was remanded in July 2012 so that yet another VA examination could be performed. The examination was performed in July 2012. First, the Board observes that the July 2012 examiner indicated that the Veteran does not now have or ever had a knee and/or lower leg condition, which is directly contradicted by the above noted medical history. Moreover, while the examiner stated that X-ray studies of the knees had been performed, no results of X-rays contemporaneous with the examination were provided. Rather, the examiner included with the examination report X-ray reports from February 2011 of the right tibia and fibula, October 2010 of the bilateral hips, and August 2002 and August 1999 of the bilateral knees and hips. The examiner then offered a negative etiological opinion on the basis that there is insufficient objective medical evidence to warrant the diagnosis of an acute or chronic bilateral hip/knee disorder or residuals thereof. The examiner went on to state that a causal condition for the Veteran's subjective pain report in the hips/knees had not been identified based upon reasonable medical certainty and probability and that based upon reasonable medical certainty and probability, the shrapnel injuries sustained to the lower extremities could not have resulted in or caused bilateral hip/knee disabilities. X-rays of the knees were requested by each prior remand and have still not been performed. Moreover, the July 2012 examiner did not acknowledge in the opinion the findings of minimal degenerative joint disease in the December 1999 X-ray in determining if there was a current diagnosis of a hip or knee disability, even though the X-ray report was copied into the examination report. When discussing diagnostic testing, the examiner did not respond to the question as to whether X-rays showed arthritis. While the Board acknowledges that it is possible that, as suggested by the examiner, it is less likely than not that the shrapnel injuries could have caused any disability of the bilateral hips and knees, regardless of current diagnosis, the examiner did not provide a rationale for that opinion based on the facts of the case or specific medical principles. In addition, the examiner expressed the opinion in teams of "reasonable medical certainty and probability" rather than the correct "at least as likely as not" standard. Therefore, the Board finds that the July 2012 VA examination is inadequate and not compliant with the Board's orders in the July 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). Consequently, the appeal must again be remanded for another VA examination and opinion. In addition, the Board notes that the Veteran's June 1998 application for VA compensation indicates that he had applied for Supplemental Security Income (SSI), but had (as yet) no income from those benefits. A May 2005 VA examination report indicates that the Veteran reported that his SSA benefits had been discontinued. However, a March 2007 inquiry made of the Social Security Administration (SSA) database revealed that the Veteran had been denied SSI benefits at some time in the past. Whether the Veteran was awarded or denied benefits, there may be medical records and SSA evaluations associated with the Veteran's claim for SSI that are relevant to the instant claim before VA. When VA has notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). Thus, the appeal is also remanded so that records from SSA may be obtained. Accordingly, the case is REMANDED for the following action: 1. Request all records associated with the Veteran's application for SSA benefits from SSA. All requests and responses, positive and negative, must be documented in the claims file. 2. Schedule the Veteran for a VA orthopedic examination to assess the nature and etiology of any disabilities of the right and left legs. The claims file should be made available for review, and the examination report should reflect that such review occurred. All pertinent symptomatology and findings must be reported in detail. All tests or studies necessary to make the required determinations must be conducted, including X-rays. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: a. Identify all diagnoses appropriate to the Veteran's symptoms and clinical findings upon examination of the right and left legs. The examiner must acknowledge the X-ray findings in December 1999, and if the examiner determines that a diagnosis of degenerative joint disease of the knees and/or hips is inappropriate, or if the examiner disagrees with any other findings or diagnosis in the claims file, the examiner should so state and give a reason for that conclusion. b. For each diagnosed disability, the examiner should provide a medical opinion as to whether it is at least as likely as not (50% probability or more) that such disability is related to some aspect of the Veteran's military service, including his in-service shrapnel injury. 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 complete rationale for any opinion offered must be provided. In addition to all medical evidence of record, the examiner must specifically contemplate the Veteran's subjective medical history, as documented in the claims file and at the examination, in forming this opinion. 5. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 6. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).