Citation Nr: 1324810 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 08-14 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a right leg disorder. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a right shoulder disorder. ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel (The issues of entitlement to a compensable rating for service-connected tinea pedis of the right foot and entitlement to a total disability rating based on unemployability will be the subject of a separate Board decision). INTRODUCTION The Veteran served on active duty from April 1970 to November 1971. 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 Chicago, Illinois. In October 2011, the Board denied this claim. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a September 2012 memorandum decision the Court vacated the Board's October 2011 decision, and remanded the Board's determination. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran seeks service connection for a right leg disorder, a right knee disorder and a right shoulder disorder. The Veteran's military occupation specialty was a light weapons infantryman and he received the Combat Infantry Badge. 38 U.S.C.A. § 1154(b) (West 2002). When it is established that a veteran had combat service, his own account of the events of combat, to include any injuries sustained therein, are to be taken as factual, if such injuries and events are consistent with the time, place, and circumstances of service. Id. The Veteran was examined by VA in June 2005. At that time the examiner opined that it was "not at least as likely as not that the [V]eteran's recent pain in the right shoulder is related to the [V]eteran's inservice right V.A. shoulder tenderness noted on 6/05/76." The rationale for the opinion was that the Veteran had not complained of right shoulder pain in his visits to Lakeside V.A. Hospital, and the pain occurred only for the past [two] years, with an interval pain free from 1976 [to] 2004. The current pain in the shoulder is related to lifting heavy parcels in the post office. However, the record shows that the Veteran had right shoulder problems in service in June 1970, not June 1976. Thus the rationale as provided is not adequate. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Further the examiner did not address the lay statement in the record that the Veteran had right shoulder pain since service. The Veteran's representative has argued that the Veteran had continuing symptoms of the disorders on appeal since service. It is argued that the Veteran had right leg circulation and right knee problems in service, which have continued since that time. A remand is necessary to secure an adequate nexus opinion regarding the etiology of the disorders on appeal. See 38 C.F.R. § 3.159(c)(4) (2012); McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO 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. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO 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 must then be given an opportunity to respond. 2. The Veteran must be afforded the appropriate VA examination to determine whether any right leg, right knee, or right shoulder disorder found is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any diagnosed right leg, right knee, and right shoulder disorders are related to the Veteran's active duty military service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion 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. 3. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must 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 must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).