Citation Nr: 1343384 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 11-16 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for left ankle arthritis (claimed as left ankle condition). 2. Entitlement to service connection for right ankle arthritis (claimed as right ankle condition). 3. Entitlement to service connection for lumbar spine arthritis (claimed as low back condition). 4. Entitlement to service connection for a left shoulder disorder. 5. Entitlement to service connection for a right shoulder disorder. 6. Entitlement to service connection for neck arthritis (claimed as neck disorder). 7. Entitlement to service connection for left hip arthritis (claimed as left hip disorder). 8. Entitlement to service connection for a left thigh disorder. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and D.P. ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active duty service from July 1979 to January 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board has reviewed the Veteran's physical claims files, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In May 2013, the Veteran and the Veteran's friend, D.P., presented testimony relevant to the appeal at a Board hearing held before the undersigned Veterans Law Judge in Nashville, Tennessee (i.e., a Travel Board hearing). A transcript of the Board hearing has been associated with the record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND After review of the record, the Board finds that additional development is needed before proceeding with appellate review for each of the issues presented in this case. Specifically, VA examinations are required to fulfil VA's duty to assist the Veteran substantiate each of the service connection claims listed above. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service, the Court has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (stating that, while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). The Veteran has submitted private medical records demonstrating current osteoarthritis of the neck, spine, hip, and ankles. See May 2013 Dr. S.S. letter; June 2013 Dr. F.W. letter. The record also reflects a diagnosis of degenerative joint disease of the left shoulder. See September 2003 Dr. M.H. clinical note. Although the record does not reflect a currently diagnosed right shoulder disability, the Veteran has provided competent testimony describing a right shoulder injury that has persisted in the same manner and over the same course of time as the left shoulder disability. See May 2013 hearing transcript at 9-10. Similarly, the Veteran testified that the left thigh condition is indiscernible from the left hip disorder. See id. at 20-21. During the May 2013 Board hearing, the Veteran also provided competent and credible testimony describing his airborne training regimen, which he asserts contributed to current disabilities of both ankles, both shoulders, the back, the neck, and the left hip and thigh. See id. at 8-10, 20-21. In addition, the Veteran offered competent and credible testimony regarding an in-service basketball injury that affected his left ankle and hip. See id. at 4-5. The Veteran has not received VA examinations for the service connection claims for the left shoulder, right shoulder, neck, left hip, and left thigh disabilities. VA's duty to assist the Veteran substantiate each of the service connection claims listed above demands that examinations be provided for each of these claimed disabilities. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d); McLendon, 20 Vet. App. 79. Moreover, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Here, while the Veteran was afforded a VA examination for the left ankle, right ankle, and lumbar spine disabilities in November 2009, the examination is not adequate. The VA examiner diagnosed the disabilities at issue, but provided an opinion regarding the etiology of these disabilities that did not use the correct standard of review and did not contain a rationale. Thus, a new examination for these disabilities is warranted. See id.; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate medical examination(s) for each of the claimed disabilities presented in this case. All relevant documents should be made available to and reviewed by the examiner in rendering the opinion. In the examination report, the examiner should confirm that the record was reviewed. Based on review of the appropriate records, the examiner should state, for each diagnosis, an opinion as to whether it is as likely as not (i.e., to at least a 50 percent degree of probability) that any current disability had its onset during service or was otherwise causally or etiologically related to service, to include any symptomatology, event, or incident therein. For purpose of providing the requested opinion, the VA examiner should acknowledge the Veteran's report of in-service airborne training that involved frequent parachuting exercises. The VA 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. A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If an opinion cannot be rendered without resorting to speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 2. When the development above has been completed, the remanded issues should be readjudicated. If any benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of this claim. See 38 C.F.R. § 3.655 (2013). 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). _________________________________________________ J. PARKER 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).