Citation Nr: 1342548 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 08-37 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right leg injury. 2. Entitlement to service connection for a left leg injury. 3. Entitlement to service connection for gastrointestinal disability, to include Barrett's Esophagus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from November 1951 to August 1953 and is a recipient of the Combat Infantryman Badge. This matter came to the Board of Veterans' Appeals (Board) from October 2007 and December 2007 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board videoconference hearing in March 2011. A transcript is of record. This matter was remanded in April 2011 for further development. In October 2012, the Board denied the Veteran's service connection claims for right leg and left leg disabilities. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated on September 24, 2013, the Court vacated and remanded part of the Board decision that denied the Veteran's service connection claims for the right and left leg disabilities for compliance with the instructions included in the Joint Motion for an Order Partially Vacating and Remanding the Board Decision (Joint Motion). Regarding the service connection claim for gastrointestinal disability, the Board remanded the claim in September 2013. Although the appeal also originally included the issue of service connection for hypertension, this benefit was granted in October 2012 and is therefore no longer in appellate status. This appeal was processed using the Virtual VA and VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. 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 is claiming service connection for right and left leg injuries. As noted by the Joint Motion, the June 2011 VA examiner based his opinion on the fact that the Veteran's medical records did not reflect in-service injury to his knees. However, the Board found that the Veteran's assertion of sustaining trauma to his knees (from artillery shelling while serving in combat in Korea) was credible and consistent with the circumstances of his combat service. Because of the Board's finding of an in-service injury, the examiner's conclusion was based on an inaccurate factual premise. The Joint Motion also noted that the VA examiner incorrectly stated that there were no private medical records when in fact there were. In addition, the examiner claimed to have reviewed service medical records when in fact they are presumed to have been destroyed by the July 1973 fire at the National Personnel Records Center (NPRC). As a result, another opinion must be obtained. As for the remaining issue, in September 2013, the Board remanded the claim due to an inadequate January 2013 VA medical opinion based on a finding of no GERD symptoms and Barrett's esophagus noted in military service. However, the Veteran's service treatment records were destroyed by the July 1973 NPRC fire. In the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. As noted by the Veteran's representative in a December 2013 statement, the November 2013 opinion repeats verbatim the inadequate January 2013 medical opinion regarding direct service connection. As a side note, April 2008 and April 2011 letters from Dr. J. T. W. notes his belief that the Veteran's stomach trouble is directly related to service. At the March 2011 hearing, the Veteran alleged stomach problems from medication taken post service. In addition, there are outstanding VA treatment records. The February 2013 supplemental statement of the case reflects review of VA treatment record dated from May 2010 to January 2013. However, of record in the Virtual VA and VBMS files are VA treatment records dated from May 2010 to November 2012. Accordingly, the RO should obtain the missing records in order to fulfill the VA's duty to assist the Veteran. This is particularly so in view of the fact that these are records in the custody of the federal government and thus are constructively part of the record on appeal. Although the Board regrets further delay, the case must be returned to the RO for additional development. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain updated VA treatment records from December 2012 to the present, and associated them with the Veteran's electronic file. 2. After completion of the above, the Veteran should be afforded an appropriate VA examination to determine the nature, extent and etiology of any right and left leg disabilities. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that the current right leg disability is causally related to service? b) Is it at least as likely as not (a 50% or higher degree of probability) that the current left leg disability is causally related to service? The examiner should note that the Board has found that the Veteran's assertion of sustaining trauma to his knees (from artillery shelling while serving in combat in Korea) was credible. A rationale should be provided. 3. The Veteran should also be afforded an appropriate VA examination by an appropriate examiner (other than the past VA examiners) to determine the nature, extent and etiology of any gastrointestinal disability, to include Barrett's Esophagus. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that the current gastrointestinal disability, to include Barrett's Esophagus, is causally related to service including his medication intake post service? b) Is it at least as likely as not (a 50% or higher degree of probability) that the current gastrointestinal disability, to include Barrett's Esophagus, is proximately due to or caused by the Veteran's service-connected posttraumatic stress disorder (PTSD)? c) Is it at least as likely as not (a 50% or higher degree of probability) that current gastrointestinal disability, to include Barrett's Esophagus, has been aggravated by the Veteran's service-connected PTSD? A rationale should be provided. The examiner should also discuss the letters from Dr. Williams and previous VA medical opinions. 3. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issues on appeal. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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. 2013). _________________________________________________ MICHAEL MARTIN 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).