Citation Nr: 1320951 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 09-34 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for residuals, cerebrovascular accident with left side hemiplegia. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from October 1973 to January 1976. He also had active duty for training (ACDUTRA) from January 1973 to July 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In May 2010, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. In March 2011, the Board remanded this claim for additional development. The case has been returned to the Board and is ready for further review. 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 Reason for Remand: to obtain an addendum opinion. In April 2011, the Veteran was examined by VA. The examiner stated that the CVA in 1980 is etiologically unrelated to transient episodes of leg weakness, eye difficulty and headaches during service which are more likely than not the consequence of complicated migraine headaches which actually improved following discharge from the military and Fort Leavenworth. The examiner went on to state that the hypertensive bleed in 1980 cannot be etiologically linked to episodes of complicated migraine while in service even though the affected side of the body turned out to be identical. In his March 2013 brief, the Veteran's representative has argued that the April 2011 VA examiner did not address the extensive lay testimony provided by the Veteran concerning in service complaints which continued thereafter until he had the stroke, and that the April 2011 examiner did not offer rationale for why the CVA could not be linked to the complicated migraines which affected the same side of his body. The Board notes that VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board finds that the examiner's finding regarding the etiology of the Veteran's current residuals of a CVA is in adequate since he did not provide a rationale for his opinion as noted above. Under these circumstances, a remand is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, even when it was not required by law, it must ensure that the examination or opinion is adequate); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion is entitled to no weight if it contains only data and conclusions without supporting rationale). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO/AMC must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO/AMC. If, after making reasonable efforts to obtain named records the RO/AMC is unable to secure same, the RO/AMC must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Refer the file to the April 2011 examiner for an addendum opinion. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. After review of all of the evidence in the file, both medical and lay, the examiner should offer an opinion with complete rationale as to whether it is at least as likely as not that any current residuals of the CVA are related to the Veteran's active service. The examiner must address the Veteran's reported symptoms of leg weakness, eye difficulty and headaches during service that he states continued thereafter. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "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. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to it being the result of some other factor or factors. 3. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (2012); See also Stegall v. West, 11 Vet. App. 268 (1998). 4. When the development requested has been completed, readjudicate the claim on appeal. If any benefit sought is not granted to the fullest extent, the Veteran and his representative must be furnished a supplemental statement of the case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).