Citation Nr: 1436435 Decision Date: 08/14/14 Archive Date: 08/20/14 DOCKET NO. 08-12 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for neurological disability, excluding the right lower extremity, claimed as due to post poliomyelitis syndrome. REPRESENTATION Appellant represented by: A. Brooke Thomas, Attorney ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran served on active duty from November 1969 to June 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Subsequently, in an October 2011 rating decision, the RO granted service connection for residuals of poliomyelitis with atrophy of the muscles and weakness of the right leg. However, further claimed residuals of poliomyelitis were not service-connected and remain on appeal. This issue was previously before the Board in October 2010 and March 2012 and remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development and adjudicative action. After completing the additional development, the AMC continued to deny the claim (as reflected in the most recent supplemental statement of the case in October 2012), and returned this matter to the Board for further appellate consideration. Regrettably, as outlined below, yet another remand is necessary before appellate review may proceed on this matter. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that further evidentiary development is necessary prior to the adjudication of his claim. The matter was most recently remanded in March 2012, to schedule the Veteran for a VA examination to determine whether any neurological disabilities, specifically involving the right shoulder, right hand/fingers, swallowing/jaw, neck, and eyes were at least as likely as not caused by or a result of his poliomyelitis. The examiner was to review the entire claims folder and identify all residuals of the Veteran's poliomyelitis. See March 2012 Board Remand. The record indicates that the Veteran was afforded a VA examination in June 2012, where the examiner concluded that degenerative joint disease and tendonitis of the right shoulder; degenerative arthritis of the right hand and wrist; cervical spondylosis; and intermittent oropharyngeal dysphagia, were not caused or aggravated by poliomyelitis. However, the examiner did not sufficiently address the question of aggravation or adequately explain the rationale for this opinion, but instead offered the bare conclusory opinion that the Veteran's diagnosed musculoskeletal disorders were likely age-related. The examiner was unable to establish cause/etiology of the Veteran's dysphagia without resorting to mere speculation. See Stefl v. Nicholson, 21 Vet. App. 120 123 (2007). ("A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion."); see also Jones v. Shinseki, 23 Vet. App. 382 (2010). The Board finds that the July 2012 examination report is inadequate and that some explanation of the conclusions therein is required to permit a proper weighing of the evidence. Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that the claims folder should be returned to the VA examiner who conducted the June 2012 VA examination for an addendum. The Board sincerely regrets the additional delay and is cognizant of the fact that this claim has already been remanded twice. Therefore, the Board wishes to assure the Veteran that it would not be remanding it again unless it was essential for a full and fair adjudication. See, e.g., Ascherl v. Brown, 4 Vet. App. 371, 377 (1993) (where the record before the Board is inadequate, a Remand is mandatory rather than permissive.) Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should be returned if possible to the VA physician who examined him in June 2012. If the original examiner is not available, the Veteran's claims folder should be forwarded to another VA medical professional or physician (orthopedist or neurologist) who will have an opportunity to review the complete file. The purpose of this current review of the file is to obtain a more detailed and responsive opinion. The claims folder and accompanying treatment records should be provided to the examiner for review in conjunction with the addendum. A notation to the effect that this record review took place should be included in the report. The report should include a discussion of the Veteran's documented medical history and assertions. Another examination of the Veteran need not be conducted unless the examiner determines that one is necessary. The physician should offer an opinion as to whether, in light of additional review the record, it is at least as likely as not, i.e., a 50 percent probability or greater, that the right shoulder degenerative joint disease and tendonitis; right hand/wrist arthritis; cervical spondylosis; and dysphagia are either caused or aggravated by his already service connected post poliomyelitis syndrome or are the result of undocumented falls and/or altered gait pattern imposed by the service-connected poliomyelitis residuals with atrophy and weakness of the right lower extremity. If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected right shoulder degenerative joint disease and tendonitis; right hand/wrist arthritis; cervical spondylosis; and dysphagia to the extent possible. In other words, he or she should try to quantify the amount of additional disability the Veteran now has, above and beyond that which he had prior to the aggravation. If no aggravation is found, the examiner should specifically indicate so and explain why that is. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The physician must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature, as deemed indicated. He/She must discuss specifically the March 2010, January 2012, and August 2012 medical opinions from C.N. Bash, M.D. and comment on the medical literature cited in those opinions (expressing agreement or disagreement with those opinions, and explain in full the rationale for such agreement/disagreement). If the physician feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). Merely saying he/she cannot comment will not suffice. 2. Ensure that the requested actions have been completed (to the extent possible) in compliance with this REMAND. If the examination report is deficient, it must be returned to the examiner for necessary corrective action, as appropriate. 3. Then readjudicate the claim. If this benefit is not granted, the Veteran must be furnished a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. 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). 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). _________________________________________________ GAYLE E. STROMMEN 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).