Citation Nr: 1323037 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 08-25 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a heart disorder, to include acute congestive heart failure. 2. Entitlement to service connection for prostate cancer. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to service connection for a bilateral ankle disorder. 5. Entitlement to service connection for a bilateral knee disorder. 6. Entitlement to service connection for a right foot disorder, to include claimed frostbite residuals. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to April 1964 followed by periods of service in the United States Army Reserve (USAR) from 1964 to 1995. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. 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). In August 2011, the Veteran appeared before the undersigned Acting Veterans Law Judge and gave testimony in support of his claims. A complete transcript is of record. In March 2012, the Board remanded these claims 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 Reasons for Remand: To request additional searches for service records and to obtain adequate VA medical opinions as to the etiology of the claimed disorders. In March 2012, the Board remanded these claims for additional development. The RO was to obtain any additional service treatment records and service personnel records associated with the Veteran's periods of active service from September 1960 to April 1964 (to include morning reports and/or sick call logs prepared while the Veteran's unit was serving in Germany from July 1961 to April 1964) as well as with his reserve service (with verified periods of ACDUTRA and INACDUTRA) in the USAR from 1964 to 1995 with his final assigned unit, 383rd General Supply Company in Troy, Alabama. It was also pointed out that a search request should be sent to the National Archives and Records Administration (NARA). The RO was to attempt to obtain any available records from the appropriate agency or agencies, to include the NARA and was to attempt to obtain the Veteran's service records from the local office of his final USAR unit. The Veteran has specifically identified that he was attached to the 383rd General Supply Company in Troy, Alabama, from 1977 until his retirement in 1995. While the RO contacted the NPRC in March 2012 and again in March 2013, evidence of record clearly does not show any attempt was made to contact NARA or the Veteran's final USAR unit in Troy Alabama. A remand of these claims is necessary to ensure compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, as directed in the March 2012 Board Remand, the Veteran was to be examined by VA and opinions as to the nature and etiology of his claimed disorders were to be provided. In April 2013 VA examination reports, the examiner diagnosed bilateral ankle strain, degenerative arthritis of the feet, hammertoes, frostbite of the right foot, metatarsalgia, bilateral knee arthralgia, diabetes mellitus II, viral cardiomyoapthy, and prostate cancer. As to the etiology of the disorders, the examiner found that none of the disorders were related to service and the repeated rationale was that there was no documentation in the service treatment records to support the claim. The Board discounts the probative value of these medical opinions because each relies only on the basis of the lack of evidence in unavailable or incomplete service treatment records. Moreover, such opinions further do not account for the Veteran's lay assertions, and such is not addressed at all in the opinions. It has been established that the Veteran's service treatment records are incomplete. As such, the Board's obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule under 38 U.S.C.A. § 5107(b) (West 2002) is heightened for these matters. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board finds the opinions rendered in the April 2013 VA examination report to be inadequate and a remand is necessary to obtain addendum opinions. When VA undertakes to provide a VA examination or obtain a VA opinion, even if not required to do so, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In rendering the new opinion, the VA examiner should consider the Veteran's statements regarding the onset and occurrence of the claimed disorders, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner relied on the absence of evidence in the service treatment records to provide a negative opinion). Finally, the claims file (to include the Virtual VA file) reflects that the Veteran has received VA medical treatment for his claimed disorders from the VA Medical Center (VAMC) in Montgomery, Alabama. As the evidence of record only includes treatment records dated up to May 2013, any additional records from that facility should be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 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) (2012). Expedited handling is requested.) 1. Appropriate action should be taken to obtain any additional service treatment records or service personnel records associated with the Veteran's periods of active service from September 1960 to April 1964 (to include morning reports and/or sick call logs prepared while the Veteran's unit was serving in Germany from July 1961 to April 1964) as well as reserve service (with verified periods of ACDUTRA and INACDUTRA) in the USAR from 1964 to 1995 from his final assigned unit, 383rd General Supply Company in Troy, Alabama, as well as from NARA. All attempted searches to locate the Veteran's service records should be made using his service number (as listed on his DD Form 214), social security number, and claims file number. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain relevant treatment records from the Montgomery VAMC dating since May 2013. 3. Thereafter, refer the file to the April 2013 VA 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. If the April 2013 VA examiner is not available, refer the file to another VA physician for review and to submit the requested opinions. The examiner must answer and address the following: (a) Does the Veteran suffer from a right foot disorder that is consistent with a frostbite injury or asserted in-service cold weather exposure? The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed right foot disorder is casually related to any period of active military service, to include asserted in-service cold weather exposure and frostbite treatment. The Veteran's lay assertions of in-service treatment and cold weather exposure must be taken into consideration when offering this opinion, as well as the February 2008 and July 2010 private medical opinions from S. K. S., M. D. (b) The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed bilateral ankle disorder was manifested during, or as a result of, any period of active military service. If (and only if) the Veteran is found to suffer from a right foot disorder casually related to military service, the examiner should also opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed bilateral ankle disorder was caused or permanently aggravated by the Veteran's right foot frostbite residuals. If the examiner determines that there has been aggravation as a result of the right foot frostbite residuals, the examiner should report the baseline level of severity of the claimed bilateral ankle disorder prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. Again, a complete rationale must be provided for this opinion, and the lay statements of the Veteran must be addressed. (c) The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed knee disorder was manifested during, or as a result of, any period of active military service. A complete rationale must be offered for all opinions offered, and the Veteran's lay assertions of an in-service injury and chronic symptomatology must be considered and discussed by the examiner. (d) The examiner must offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) the Veteran's diagnosed heart disorder, diabetes mellitus, and/or prostate cancer were incurred in or aggravated by any period of active military service. A complete rationale must be stated for all opinions offered, and the Veteran's lay assertions as to onset and continuity of symptomatology must be considered and discussed by the examiner. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide any of the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. Another examination of the Veteran must only be performed if deemed necessary by the examiner providing the requested medical opinions. 4. After the development requested has been completed, the RO must review any medical opinions and/or examination reports to ensure that they are in complete compliance with the directives of this Remand. If the opinions and/or reports are deficient in any manner, the RO must implement corrective procedures at once. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must readjudicate the Veteran's claims on appeal. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After he has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ J. D. DEANE Acting 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).