Citation Nr: 1338323 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-09 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a back disorder, to include as secondary to service-connected pes planus. 2. Entitlement to service connection for a right leg disorder, to include as secondary to service-connected pes planus. 3. Entitlement to service connection for a left leg disorder, to include as secondary to service-connected pes planus. 4. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected pes planus. 5. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected pes planus. 6. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected pes planus. 7. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected pes planus. 8. Entitlement to service connection for a right ankle disorder, to include as secondary to service-connected pes planus. 9. Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected pes planus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran, Ms. E E., and Ms. T. D. ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from November 1950 to November 1954. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). This case was remanded by the Board in September 2011 and October 2012 for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 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 Veteran if further action is required. REMAND The Board regrets that these claims must once again be remanded, however further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2013). The Board has made multiple attempts to obtain medical opinions to determine whether the Veteran's various claimed disabilities were caused or aggravated by service or a service-connected disability. The Board initially remanded the claims on appeal in September 2011 for appropriate VA examinations. However, in October 2012, the Board found that the examinations provided were inadequate and again remanded the claims for new examinations. Additional examinations were then provided in December 2012 and May 2013, however there were also flaws with these opinions. Specifically, the December 2012 examination report provided opinions stating that the Veteran's bilateral ankle, leg, and hip disabilities were less likely as not "causally related to his service-connected pes planus" and were instead related to peripheral vascular disease and venous insufficiency. Unfortunately, a medical opinion finding that a claimed disorder is not "caused by" a service-connected disability but is "related to factors other than the" service-connected disability, does not encompass the question of aggravation under 38 C.F.R. § 3.310. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). As such, the December 2012 medical examination did not provide adequate opinions as to whether the Veteran's bilateral ankle, leg, and hip disabilities were aggravated by his service-connected pes planus. In addition, the December 2012 medical examination also found no abnormalities on physical or x-ray examination of the Veteran's ankles, with a specific notation that the Veteran did not have arthritis of the ankles. Such findings contradicted an October 2009 private medical report, which specifically found that the Veteran had an "ankle deformity" and "severe arthritis of ankle joints." No explanation was provided by the December 2012 examiner to explain this contradiction. With respect to the May 2013 VA examination report, the examiner opined that "[i]t is less likely than not that this disability is not related to any military service and is related @@@ due to his severe vascular disease, both arterial and venous, and arterial insufficiency." This opinion contains a double-negative and as such, when read literally, provides an opinion which states that the Veteran's disabilities are likely related to military service. However, such a positive opinion is not consistent with the rationale provided to substantiate it, which is more consistent with a negative nexus opinion. It thus unclear whether the examiner intended to provide a positive or negative nexus opinion. To resolve these issues, in August 2013, the Board requested an opinion from a medical specialist with respect to the medical questions pertinent to the Veteran's claims. The first question asked was: Does the Veteran have a current diagnosis of back, right leg, left leg, right hop, left hip, right knee, left knee, right ankle, and left ankle disorders? If the Veteran does not have a current diagnosis of any of these claimed nine disorders, did the Veteran previously have such a disorder which subsequently resolved, or did he never have such a disorder? If the Veteran is found to have never had such a disorder for one of the nine areas of claimed disability, explain this conclusion in light of any previous diagnosis of such a disorder. A medical advisory opinion was subsequently provided in September 2013, which answered this question as follows: "My chart review notes that he does indeed carry these diagnoses, whether or not they are correct I cannot say." In this regard, the Board notes that the entire purposes of asking the question was to determine whether such diagnoses were correct and, as such, the answer provided by the medical specialist was not useful to the Board. At the same time, the Board notes that the medical specialist who provided the opinion was the Chief of Orthopedic Surgery at a VA medical center. The Board has interpreted the medical specialist's answer to mean that a determination as to whether the diagnoses were correct could not be provided because the Veteran himself could not be examined. Given the qualifications of the specialist who provided the opinion, the Board finds that it is unlikely that the same specialist, or indeed any other specialist, would be able to answer the question with the information provided. As such, the Board shall not seek a clarification of this opinion and shall instead remand the claims once again so that the necessary medical opinions can be provided by a medical professional who can physically examine the Veteran. Accordingly, the case is REMANDED for the following actions: (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/RO must contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated or examined him for the back, leg, hip, knee, and ankle disabilities on appeal. An attempt must be made to obtain, with any necessary authorization from the Veteran, copies of pertinent treatment records identified by him in response to this request which have not been previously secured. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts to obtain named records, such records cannot be obtained, the Veteran must be notified and (a) the specific records that cannot be obtained must be identified; (b) the efforts that were made to obtain those records must be explained; (c) any further action to be taken by VA with respect to the claims must be noted; and (d) the Veteran must be notified that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2) Schedule the Veteran for the appropriate VA examinations to ascertain the etiology of any currently diagnosed back, left leg, right leg, left hip, right hip, left knee, right knee, left ankle, and right ankle disorders. The examiner must review the claims file and should note that review in the report. Based upon review of the available lay and medical evidence, the examiner must provide opinions as to whether it is at least as likely as not (50 percent or greater probability) that any disability found was incurred in or aggravated by the Veteran's period of service. The examiner must also provide opinions as to whether it is at least as likely as not (50 percent or greater probability) that any disability found was caused or aggravated by the Veteran's service-connected pes planus. If the Veteran is found to not have a current diagnosis of any of the claimed disorders, the examiner must state whether the previous diagnoses of that disorder were erroneous, or whether they were correct but the disorder subsequently resolved. A complete rationale for all opinions must be provided. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 1. 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 provided a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). These claims 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. 2013). _________________________________________________ Nathaniel J. Doan 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) (2012).