Citation Nr: 1418801 Decision Date: 04/29/14 Archive Date: 05/06/14 DOCKET NO. 08-06 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a right leg disability. 2. Entitlement to service connection for a left leg disability. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to October 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which, in pertinent part, denied the current appellate claims. For the reasons stated below, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In this case, the Board finds that further development is required in order to comply with the duty to assist. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In this case, the Veteran's lower extremities were clinically evaluated as normal on his November 1965 enlistment examination. He did indicate on the concurrent Report of Medical History that he had experienced cramps in his legs, and it was noted that a horse had previously rolled on his left leg. His service treatment records do not otherwise show any entries indicative of leg problems while on active duty and his lower extremities were again evaluated as normal on his September 1968 expiration of term of service examination. He again noted cramps in his legs on a concurrent Report of medical History. However, this time it was noted that he experienced cramps in his legs with long standing; as well as foot trouble/painful arches with long standing. The record does not show any medical treatment for leg problems in the post-service evidence until years after the Veteran's separation from service. The Board acknowledges that the Veteran was accorded a VA medical examination in April 2007 in which the examiner opined, in pertinent part, that his bilateral leg conditions were less likely (less than 50/50 chance) than not due to or the result of military service. In support of this opinion, the examiner stated that the current bilateral leg conditions were probably due to degenerative joint disease in the knees; that there was not enough on the record to support these as being related to military; and that if degenerative joint disease had been present 40 years ago, the examiner would have expected it to be much more advanced now. The record also reflects the Veteran subsequently submitted a private medical statement dated in June 2007 from a Dr. Steinke who noted the Veteran had been in their clinic since 1992, and she had been following him since 1999. Dr. Steinke noted that Veteran had persistent leg pain and cramping which was most centralized in the upper tibia into the calf area behind his knees bilaterally. Dr. Steinke also noted she had reviewed the Veteran's military records including the fact he noted "cramps in legs with long standing" in September 1968. Therefore, Dr. Steinke stated these symptoms had been persistent since the Veteran's military service, and that the Veteran reported that they were not going on prior to his military service. Consequently, it was Dr. Steinke's opinion that these are the same symptoms the Veteran has documented since 1968 and they are related to his military service. In view of the foregoing, the Board finds that the nature of the Veteran's bilateral leg conditions are not clear from the evidence of record. As noted above, the April 2007 attributed the complaints to degenerative joint disease of the knees, while Dr. Steinke noted complaints of pain and cramping in the legs without attributing them to degenerative joint disease. Moreover, the April 2007 VA examiner clearly did not have the benefit of considering Dr. Steinke's June 2007 opinion. Further, Dr. Steinke stated in her opinion that the Veteran did not have problems prior to service, but his November 1965 Report of Medical History did note cramps in the legs apparently when a horse rolled on the left leg. Therefore, it is not clear that Dr. Steinke's opinion was based on an accurate understanding of the Veteran's medical history. For these reasons, the Board finds that the evidence of record is not adequate for adjudication of the Veteran's claims of service connection for disabilities of the right and left leg. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Consequently, the Board concludes that a remand is required in order to accord the Veteran a new VA medical examination that does adequately address the nature and etiology of his bilateral leg disability. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). Since the Board has determined that a new examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. The Board further finds that any outstanding treatment records regarding the Veteran's bilateral leg disability should be obtained while this case is on remand. Accordingly, the case is REMANDED for the following action: 1. Please obtain the names and addresses of all medical care providers who have treated the Veteran for his legs since June 2007. After securing any necessary release, obtain those records not on file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service bilateral leg symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the nature and etiology of his current bilateral leg condition. The claims folder should be made available to the examiner for review before the examination. For any chronic leg condition found to be present, to include the knees, the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that it was incurred in or otherwise the result of the Veteran's active service. The examiner's opinion should reflect consideration that the Veteran noted cramps in his legs on the November 1965 and September 1968 Reports of Medical History, as well as the prior opinions of the April 2007 VA examiner and Dr. Steinke in her June 2008 statement. A complete rationale for any opinion expressed should be provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After completing any additional development deemed necessary, readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the January 2008 SOC, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ M. N. HYLAND 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).