Citation Nr: 1330265 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 13-06 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a left lower extremity disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1956 to June 1960, and July 1960 to May 1976. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Fargo, North Dakota. In June 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge (VLJ) at the RO; a transcript of that hearing is of record. The Board notes that the Veteran was previously denied service connection for contusion, left lower leg, in June 1981, based on a finding that his injury in service was acute and transitory. The RO noted that the Veteran made a complete recovery from the injury, as it was not found on his examination. The RO thus treated the claim on appeal as an application to reopen the previously denied claim. However, in characterizing the issues on appeal, the Board has considered the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008), which provides that a claim premised on a diagnosis not considered in prior decisions is treated as a new claim without the need for new and material evidence. At the time of the prior denial, it is unclear what the diagnoses pertaining to the Veteran's left leg were. The claims file does not appear to contain any VA examination report or post-service medical records at the time the June 1981 denial was issued. Since the June 1981 denial, the Veteran has been diagnosed with various disorders of the left leg, including osteoarthritis and arthrosis of the left hip, degenerative joint disease of the left knee, and peripheral neuropathy of the bilateral feet and ankles. As these diagnoses were not of record at the time of the previous final denial, the Board finds that the claim for service connection for a left lower extremity disability is a new claim, and must be considered without regard to whether new and material evidence has been received. Regardless, since the evidence would be new and material, the same result is reached. Additionally, at the June 2013 hearing, the Veteran clarified with the undersigned VLJ that while the RO developed the appeal as involving only the left knee, he experiences problems with entire left leg as a result of his in-service injury. To more accurately reflect the Veteran's actual arguments and assertions, the undersigned VLJ accordingly characterized the claim as captioned on the title page. Hearing Transcript, p. 2. A claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits "by referring to a body part or system that is disabled or by describing symptoms of the disability." Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009). The Board has considered documentation included in the Virtual VA system in reaching the determinations below. No new records pertinent to this appeal were found therein. 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). 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 The Board finds that further development is necessary before the appeal can be properly adjudicated. Initially, the Board notes that there may be outstanding VA treatment records pertinent to the claim. In an October 2012 letter, the Veteran indicated that he sought treatment for his left leg from the Fargo, VA Medical Center in the 1980s. At present, the claims file, including the Virtual VA file, is devoid of any VA treatment records. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Any VA treatment records should be obtained before the claims are adjudicated by the Board. Also, in a May 2012 letter, the Veteran stated that in 1978 he saw a doctor for pain in the left leg, who told him to put up with the pain. While these records may be unavailable due to their age, the Board finds that an attempt should be made to obtain them. 38 C.F.R. § 3.159(c)(1) defines reasonable efforts in obtaining records outside the custody of the federal government as "an initial request for the records, and, if the records are not received, at least one follow-up request." The records must be requested prior to appellate adjudication. A remand is also necessary to obtain an additional medical opinion in this case. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). Here, the Veteran contends that in 1964 while on active duty, he climbed a wooden ladder in order to fix an oil leak on an outboard engine as part of his duties as a flight engineer and mechanic. The ladder broke, and the Veteran fell approximately 6 to 8 feet, while holding a cowling weighing around 40 pounds. The Veteran contends he broke ever rung of the ladder as he fell, still holding the cowling, before landing on the cement below. He submitted an October 2012 buddy statement to support this in-service event and the fact that he continued to limp after the accident. Service treatment records confirm that the Veteran fell from a ladder in June 1964. X-rays were negative. He had considerable swelling of the medial aspect from the upper 1/3 tibia to the heel with large purple discoloration and discharge of serous extravasation through tense shiny skin and rubor. He was treated with saline soaks, bed rest, elevation of the leg, Nembutal to help with insomnia, and Codeine. A follow-up record from June 1965 showed hyperpigmentation of the area with a lack of sensation to the touch. In addition to the 1964 accident, service treatment records show other problems with the left lower extremity. In April 1961, the Veteran sought treatment for a possible fracture of the left foot. He was found to have a contusion. He was prescribed an ace wrap, cold soak, and crutches. In April 1963, the Veteran complained of a painful left heel of 2-3 months duration. There was no evidence of injury. He was given a heel pad. Post-service records show the Veteran has been diagnosed with a number of disabilities affecting the left leg, including osteoarthritis and arthrosis of the left hip, degenerative joint disease of the left knee, and peripheral neuropathy of the bilateral feet and ankles. The record also contains various opinions concerning the etiology of these disorders. Private medical records from August 2010 and September 2010 note that while the Veteran has sensory neuropathy of the feet, there is no "identifiable reason" for the disorder. On VA examination in July 2012, the Veteran was diagnosed with osteoarthritis of the left hip and degenerative joint disease of the left knee. The examiner offered a negative nexus opinion, based on the facts that service records did not show joint involvement in the 1964 injury, there was no documentation of disability subsequent to the event, and the Veteran's separation examination was normal. The examiner also noted no evidence of complaints until 2003. Also, the examiner noted the Veteran has other risk factors for developing degenerative joint disease of the weight bearing joints including being overweight and a history of smoking. In August 2012, the Veteran's daughter, who is also a nurse, opined that his pain and neuropathy is the result of the 1964 fall from the ladder. She essentially opined that the force his legs, pelvis, and spine absorbed while hitting and breaking each step, until falling onto the cement with the cowling, caused his current condition. In December 2012, a private physician, Dr. M., opined that the Veteran's remote injury "could have precipitated early decline in his function and been the cause of persistence of his pain and the result in a posttraumatic arthrosis such as he experienced prior to hip replacement." Later in the report, Dr. M. used more definitive language, stating, "I believe it is very likely his painful arthrosis was the cause or significantly contributed to by the injury he sustained when in the military service." Dr. M. additionally opined, "an injury to the hip such as would occur in a fall from a ladder could also result in other problems and discomforts in this[sic] left leg." In a July 2013 report, a private podiatrist, Dr. E., diagnosed atrophy of the fat pads under the metatarsophalangeal joints, and marked peripheral neuropathy of both feet with nearly a complete loss of protective sensation that extends above the ankles and includes the entirety of both feet. Dr. E. opined, "it is possible that [the Veteran's] lower extremity symptoms are a result of, or significantly contributed by the injury he described." In a July 2013 report of K.O., a nurse practitioner of a treating private physician, Dr. B., she stated that she could not say whether the Veteran's current symptoms are directly related to his fall, but that since establishing treatment with Dr. B., he has consistently reported left hip and leg pain with paresthesias of the bilateral lower extremities and feet. She stated the Veteran had been treated by Dr. B. for many years. In May 2013, Dr. M. signed and submitted a duplicate of his December 2012 report. The Board finds that this evidence should be reconciled prior to appellate adjudication. Several of the private opinions discussed above contain speculative language without a clear rationale. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of a claimed disorder or any such relationship); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board finds that an additional medical opinion, based on full consideration of the Veteran's documented medical history and assertions, and supported by a clearly-stated rationale, would be helpful in resolving the claim for service connection. Accordingly, the case is REMANDED for the following action: (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. The RO should contact the Veteran and request that he provide any authorization forms necessary to allow the RO to obtain treatment from the 1978 provider who told him to put up with the pain, as referenced in his May 2012 letter. Thereafter, the RO should attempt to obtain those records. If no records can be obtained, VA's efforts must be documented for the record. 2. Ask the Veteran to identify all VA facilities at which he has received treatment. Then, the RO/AMC should obtain all VA treatment records pertaining to the Veteran. Specifically, the RO should obtain any VA treatment records from the Fargo VA Medical Center, to include from the 1980s. If no records can be obtained, VA's efforts must be fully documented for the record, and compliance with the requirements of 38 C.F.R. § 3.159(e)(i)-(iv) (2012) must be achieved. 3. The Veteran should be afforded a VA examination to address the nature and likely etiology of the disabilities of his left leg. The examiner is to be provided access to the claims folder and Virtual VA as needed. Any and all indicated studies deemed necessary by the examiner should be accomplished. The examiner is requested to first clearly identify all disabilities of the left leg, including of the hip, knee, ankle, and foot. Then, for each identified disability, offer comments and an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that the disability is due to an injury or other event or incident of the Veteran's period of active service, to include the documented June 1964 fall from a ladder. In so doing, the examiner should consider the conflicting medical opinions of record, including the July 2012 VA examination report, the August 2012 report of nurse V.B., the December 2012 report of Dr. M., the July 2013 report of nurse practitioner K.O., and the July 2013 report of Dr. E. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The Veteran should be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 5. After the completion of any action deemed appropriate, the appellant's claim should be readjudicated. If the benefit sought remains denied, the appellant should be provided a supplemental statement of the case and given the opportunity to respond. 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). _________________________________________________ H. N. SCHWARTZ 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).