Citation Nr: 1331327 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 99-07 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a bilateral leg disorder with weakness. ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran had active service from January 1955 to December 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1999 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Jackson, Mississippi. A September 2000 Board decision denied the Veteran's claim. A February 2001 order of the Court of Appeals for Veterans Claims (Court) vacated the September 2000 Board decision and remanded this matter to the Board (in light of the recent enactment of the VCAA). An October 2001 Board decision denied the Veteran's claim. An April 2003 Court order vacated the October 2001 Board decision and remanded this matter to the Board. A May 2004 order of the Court of Appeals for the Federal Circuit (Federal Circuit) vacated the April 2003 Court order and remanded the matter to the Court in light of the Federal Circuit's decision in Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). A July 2004 Court order revoked its prior April 2003 order, again vacated the October 2001 Board decision, and remanded the matter to the Board. A March 2008 order of the Federal Circuit affirmed the July 2004 Court order. In September 2008, August 2010, and March 2012, the Board remanded the Veteran's claim for further development, and this matter is now returned to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). See 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 Veteran had active service from January 1955 to December 1957. The Veteran claims that he has a bilateral leg disorder involving weakness that had its onset in service. By way of background, the Veteran's service treatment records, all except for his December 1957 separation examination report, have been found to be fire-related. His December 1957 separation examination report is negative for any complaints of leg problems. Post-service, an October 1981 state medical evaluation for disability benefits reflects the Veteran complained of pain and weakness in his extremities, particularly his right arm, and myopathy was diagnosed, noted as most likely alcoholic myopathy. See also Private Treatment Record, July 1983 (Dr. A.W.S., diagnosed diffuse neuromyopathy with muscular atrophy probably secondary to alcoholism). An April 1982 VA examination report (orthopedic) reflects that the Veteran reported having slipped at work five years prior and that he hurt his right leg, and then a few years ago he experienced right leg pain with a right foot drop that resolved. Right lower extremity weakness, cause undetermined, was diagnosed. An October 1982 VA hospitalization record reflects that the Veteran had been hospitalized for complaints of right arm weakness and numbness. He reported that had been told that he had a stroke a year ago, and that he first noticed symptoms in April 1981 when he experienced right arm and leg weakness. A diagnosis of mononeuropathy multiple, etiology undetermined, was recorded. See also VA EMG, August 1982. A December 1983 VA examination report (general) reflects he reported weakness in his legs, arms, and right hand that began around July 1981, and right wrist drop and weakness with a total loss of use was noted. A January 1984 private treatment record reflects a diagnosis of undiagnosed disease of the central nervous system manifested by weakness of the upper and lower extremities. An October 1991 private medical record reflects diagnosed lower extremity dysfunction, and indicates symptoms began around 1981 or 1982. VA treatment records also reflect that the Veteran has been followed for gouty arthritis, including complaints of right knee/leg pain. See, e.g., August 1987, July 2002 (knee pain since age 21 attributed to undertreated gout), July 2003. A June 2006 VA treatment record reflects diagnosed suspected colchicine myopathy (prescribed for gout) due to complaints of weakness. VA treatment records also reflect that the Veteran has been diagnosed as having rheumatoid arthritis and bilateral knee degenerative joint disease (DJD). The Veteran was provided with a January 1993 VA neurological examination, reflecting no significant weakness in his lower extremities, but diagnosed multiple mononeuropathies of uncertain etiology, post surgical (apparently relating to his elbow and wrist surgeries, and not to his lower extremity complaints), and it was noted that his problems with his lower extremities appeared to be orthopedic. A February 1993 VA orthopedic examination report reflects diagnoses including a bizarre sensory pattern in the lower extremities. More recently, a September 2010 VA medical opinion was obtained. The examiner essentially opined that he could not attribute the Veteran's pre-2006 CVA lower extremity weakness, or his gouty arthritis or rheumatoid arthritis to service without resorting to mere speculation due to the lack of treatment records between his separation from service and the early 1980s. The Board notes that in March 2012, the Board remanded the Veteran's claim so that certain VA treatment records could be obtained from the Jackson VA medical center (VAMC) dated in 1958, and from the Jesse Brown VAMC dated in 1963. The Board acknowledges repeated efforts were made by the AMC to obtain these records. Nevertheless, a January 2013 reply from the Jackson VAMC reflects they responded that if the records sought were service treatment records, they did not maintain such records. Because the AMC did not follow up with the Jackson VAMC to explain that the records sought were post-service VA treatment records, regrettably, the Board finds that a remand is necessary so that the AMC may respond to the Jackson VAMC and make another attempt to obtain the records. See Stegall v. West, 11 Vet. App. 268 (1998). Similarly, a June 2013 reply from the Jesse Brown VAMC regarding the AMC's request for records dated in 1963 reflects that all of the Veteran's VA treatment records from that facility had been transferred in 1989 to the Jackson VAMC. No follow-up was ever made, however, by the AMC with the Jackson VAMC to request the records from that facility. Therefore, regrettably, another remand is also necessary so that the AMC may send a request to the Jackson VAMC for copies of the Veteran's Jesse Brown/Chicago VA treatment records dated in 1958 and 1963. See Stegall v. West, 11 Vet. App. 268 (1998). As a final matter, the Board notes that after the September 2010 VA examination was performed, several volumes of medical records have been associated with the claims file, as well as approximately 1500 pages of VA treatment records uploaded into the electronic claims file (Virtual VA). Therefore, the Board finds that on remand, another VA examination should be conducted. 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) (2013). Expedited handling is requested.) 1. The AMC should contact the VA Medical Center in Jackson, Mississippi, and request as follows: a) VA medical records dated from January 1958 to December 1958, including outpatient treatment reports and hospitalization summary reports. Please emphasize that these do not constitute military records. b) VA medical records dated from January 1963 to December 1963 prepared by the Chicago/Jesse Brown VAMC. Please indicate that the Jesse Brown VAMC explained that they sent these records to the Jackson VAMC. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. After the above development has been completed, schedule the Veteran for another VA examination. The claims folder should be forwarded to the examiner for review. The examiner should review the medical history and clarify whether it is "at least as likely as not" that any orthopedic and/or neurologic bilateral leg disorder with weakness had its onset during active service or is otherwise related to service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship or a finding of aggravation; "less likely" weighs against the claim. [NOTE:] The examiner's opinion should specifically address the Veteran's complaints of lower extremity weakness, as well as his diagnosed bilateral knee DJD, gouty arthritis, and rheumatoid arthritis. [NOTE:] If the requested opinion cannot be provided without resort to speculation, the examiner should provide a thorough rationale. 3. Then, readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ S. S. TOTH 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).