Citation Nr: 1332693 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 07-10 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a right foot disorder. 3. Entitlement to service connection for a left foot disorder. 4. Entitlement to service connection for sciatica symptoms of the right lower extremity. 5. Entitlement to service connection for sciatica symptoms of the left lower extremity. 6. Entitlement to service connection for a right ankle disorder. 7. Entitlement to service connection for a left ankle disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran had active service from July 1973 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. This matter was previously before the Board in November 2010 at which time it was remanded for additional development. It is now returned to the Board. Since the requested development has not been completed, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). 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 After carefully considering this matter, and for reasons expressed immediately below, the Board believes that this case must be remanded for further development of the record. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of a previous remand. However, another remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. In the November 2010 Board remand, the RO was directed to obtain all outstanding VA and private treatment records, including but not limited to VA records dated from 1997 forward. Medical treatment records from the Orlando and Biloxi VA Medical Centers were obtained. In September 2011, the RO issued a formal finding of unavailability of VA outpatient treatment records from Bay Pine, Biloxi, and Gainesville Medical Centers. The RO did not address in the formal finding the July 2011 Gainesville Medical Center response stating that the Veteran had a chart that was retired in 1985 that may be recalled. In May 2012, the RO requested the chart that was retired in 1985; however, this chart was not associated with the claims file, and there is no indication that any response to the request was provided. Additionally, in the November 2010 Board remand, the RO was directed to schedule the Veteran for an appropriate VA medical examination to determine the nature and etiology of his low back disability, sciatica symptoms in the bilateral lower extremities, bilateral foot disabilities, and bilateral ankle disabilities after obtaining the requested medical records. However, the Veteran was afforded VA examinations in December 2010 and January 2011, prior to the RO obtaining the additional VA treatment records requested on remand. Furthermore, the January 2011 opinion was unclear as the examiner discussed the Veteran's back, feet, and ankle disabilities generally together without addressing the specific medical history of each claimed disability or the Veteran's statements as to the onset of symptoms and prior treatment as directed in the previous remand. Also, the December 2010 examiner found that there was insufficient objective evidence to warrant the diagnosis of an acute or chronic bilateral ankle disorder and lower back disorder or residuals thereof. The March 2006 VA examination did provide a diagnosis of lumbar strain and degenerative joint disease of the ankles. There was no discussion of these previous diagnoses in the December 2010 examination report. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); 38 C.F.R. § 3.159 (c)(4). As such, further examination of the Veteran is necessary in this case. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted disabilities should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); 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 action: 1. The RO/AMC shall ask the Veteran to identify all locations of VA treatment or evaluation for his asserted disabilities and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. All records obtained must be associated with the Veteran's claims file. 2. The RO/AMC shall obtain copies of the chart that was retired in 1985 from the Gainesville Medical Center. All requests and responses, including negative responses, must be documented in the claims file. All records received should be associated with the claims file. 3. After the above development is completed, the RO/AMC shall schedule the Veteran for an appropriate VA examination(s) to determine the nature and etiology of his asserted low back disability, sciatica symptoms in the right and left lower extremities, right and left foot disabilities, and right and left ankle disabilities. The entire claims file and a copy of this remand shall be made available for review, and such review should be noted in the examination report(s). All necessary tests and studies should be conducted. Each examiner must identify all current disabilities and offer a separate opinion for each disability as to whether it is at least as likely as not that any each disability was incurred in or aggravated as a result of service, to include the documented injuries during service. The examiner(s) must consider all previous diagnoses relating to the back and ankle disabilities as noted in the March 2006 VA examination. The examiner(s) is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for any of the asserted disabilities in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner(s) is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner(s) must provide a complete rationale for each opinion given. 4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it shall be undertaken prior to further claims adjudication. If the appeal is returned to Board without compliance of the Remand directives, another remand will likely result. Stegall, 11 Vet. App. at 271. 5. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS 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) (2013).