Citation Nr: 1324057 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 08-17 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a lower extremity neurological disorder, to include sciatica. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to April 1971; from July 1971 to May 1975; from January 1976 to August 1980; from June 1996 to January 1997; from April 2001 to July 2001; and from January 2003 to April 2004. The Veteran had additional duty with the Army Reserve. He has received numerous awards and decorations for his military service, including the Combat Action Ribbon, the Purple Heart, and the Silver Star. 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 Waco, Texas. In October 2011, the Board granted service connection for tinnitus and remanded the issues of entitlement to service connection for a chronic pulmonary disorder, to include bronchitis and chronic obstructive pulmonary disease (COPD) and for a chronic lower extremity neurological disorder, to include sciatica. In August 2012, the RO granted service connection for bronchitis claimed as COPD. As the appeal of that issue was resolved, it is no longer for consideration by the Board. Thus, the only issue remaining on appeal is entitlement to service connection for a lower extremity neurological disorder, to include sciatica. The Virtual VA eFolder has been reviewed and contains relevant documents, to include additional rating decisions and a June 2013 post-remand brief. 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 Initially, the Board notes that the Virtual VA eFolder contains rating decisions dated in June 2012 and May 2013 that reference evidence not contained in the Virtual VA eFolder or the paper claims file. On remand, the RO/AMC should determine whether there is a temporary folder and if so, its contents or copies thereof should be associated with the claims folder or Virtual VA eFolder. Of particular relevance, the May 2013 rating decision references VA medical records from the North Texas Healthcare System dated from July 2001 to May 2013. These records are not contained in Virtual VA, and a review of the claims folder shows that VA medical records were last printed in October 2011. On remand, additional VA records must be associated with the claims folder. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered part of the record on appeal since they are within VA's constructive possession.) In addition, the October 2011 remand directed that the Veteran be provided a VA examination to determine the current nature and etiology of the claimed lower extremity neurological disability. The examiner was requested to opine whether any identified lower extremity neurological disorder had its onset during service; was etiologically related to the in-service lower extremity neurological complaints and/or service in the Republic of Vietnam and/or Iraq; or, was otherwise related to active service. If the response was negative, the examiner was to address whether the disorder was due to or aggravated by the Veteran's service-connected left leg shall fragment wound residuals. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). It is substantial compliance with remand orders that is required in order to meet the obligations of Stegall. Dyment v. West, 13 Vet. App. 141 (1999). The Veteran underwent a VA examination in April 2012. Regarding whether the Veteran had a peripheral nerve condition, the examiner listed the following diagnoses: (1) lower extremity neuro problems, date of diagnosis unknown; and (2) shrapnel injury to the left leg at the calf area. The examiner provided the following remarks: Veteran did bring some of his [service medical records] and [private] records with him which I reviewed. I see nothing in these records to indicate anything about neuro symptoms in lower extremities. His [private doctor] has [diagnosed] him with sciatica per records. So, his current sciatica is less likely as not related to the military. He had normal L-S xrays today and one [foreign body] in left calf xray today. His scitica (sic) would not be from his shrapnel wound left calf. Regarding rationale, the examiner stated: No [service medical record] indicates sciatica. I doubt these symptoms are from his [gunshot wound] to left calf. A June 2012 addendum indicates that the claims folder was reviewed and that there was no change in the opinion regarding the shrapnel injury to the left leg. In a June 2013 brief, the Veteran's representative noted the Veteran's contention that neurological pain began during active service and continues to date. The representative essentially argued that the examiner's opinion was inadequate because it failed to consider the Veteran's lay statements. On review, the Board finds that the VA opinion is inadequate and not sufficiently compliant with the previous remand directive. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.); Dyment. First, the Board notes that there is some confusion over the diagnosis. The examiner listed a diagnosis of "lower extremity neuro problems," yet based his opinion on a diagnosis of sciatica. Second, there is no indication that the examiner considered the Veteran's service in Vietnam and/or Iraq as directed. In this regard, the Board notes that the Veteran served in Vietnam and that Agent Orange exposure is presumed. See 38 C.F.R. § 3.307(a)(6)(iii) (2012). The examination should consider whether the claimed condition is related to Agent Orange exposure, regardless of whether the disability is listed as a disease presumptively associated with such exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Additionally, the Veteran is a Persian Gulf veteran and neurological signs or symptoms must be considered as possible manifestations of an undiagnosed illness. See 38 C.F.R. § 3.317(b), (e) (2012). Third, the examiner stated that he saw nothing in the record to indicate neurological symptoms in the lower extremities. As set forth in the previous remand, service treatment records do reflect that the Veteran complained of lower extremity sensory impairment, right thigh and left leg numbness, and right-sided sciatic discomfort. For example, in March 2004, a military physician noted a history of right-sided sciatic discomfort for a couple of years now. In a December 2004 examiner's summary, the physician noted numbness in the right thigh when standing for a long time - sciatic nerve. Finally, with regard to secondary service connection, the examiner did not address aggravation as directed. Under the circumstances of this case, the Board finds that additional VA opinion is needed. 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should determine whether there is a temporary folder for the Veteran. If so, the contents of this folder or copies thereof should be associated with the claims folder or Virtual VA eFolder. 2. The AMC/RO should request medical records from the VA North Texas Healthcare System for the period from October 2011 to the present. All records obtained must be associated with the claims folder or Virtual VA eFolder. 3. The AMC/RO should contact the April 2012 VA peripheral nerves examiner for clarification regarding the prior medical opinion provided. The claims folder should be available for review by the examiner. Additionally, all relevant medical records should be made available to the examiner for review, either in the Virtual VA eFolder, or if the eFolder is not available, then via paper copies. If the VA examiner who conducted the examination is no longer available, the requested information should be obtained from a similarly qualified VA examiner. An additional examination is not needed unless requested by the examiner. The examiner is requested to: (a) State whether the Veteran's complaints related to the lower extremities can be attributed to a known clinical diagnosis, to include sciatica. If the examiner cannot identify a known diagnosis or disease which causes the claimed symptoms, the examiner must so state. (b) If the lower extremity complaints are attributed to a known diagnosis, the examiner should opine as to whether it is at least as likely as not that the disorder is related to the Veteran's active military service or events therein, to include Agent Orange exposure and his in-service symptomatology. In addressing this question, the examiner should consider the Veteran's in-service complaints. In this regard, it should be noted that the Veteran complained of lower extremity sensory impairment, right thigh and left leg numbness, and right sided sciatic discomfort in service. For example, in March 2004, a military physician noted a history of right-sided sciatic discomfort for a couple of years. In a December 2004 examiner's summary, the physician also noted numbness in the right thigh when standing for a long time - sciatic nerve. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (c) If there is no relationship between any currently diagnosed lower extremity neurological disability and military service, the examiner should then opine whether the disorder is proximately due to or aggravated (permanently worsened) by a service-connected disability, to include the residuals of a left leg shrapnel wound. The examiner is requested to provide a response for each of the questions posed. A complete rationale should be provided for any opinion offered. 4. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO/AMC should implement corrective procedures at once. 5. Upon completion of the above development, and any additional development deemed appropriate, the RO/A