Citation Nr: 1545232 Decision Date: 10/22/15 Archive Date: 10/29/15 DOCKET NO. 07-05 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a left lower extremity disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to January 1970. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In November 2010, the Board remanded the Veteran's claim for an initial compensable rating for his service-connected posttraumatic stress disorder (PTSD). Following two VA examinations, the RO assigned staged ratings for the Veteran's PTSD in a rating decision mailed to the Veteran on December 13, 2012. As these ratings were still less than the maximum benefit available, the appeal was still pending. See AB v. Brown, 6 Vet. App. 35, 39 (1993). In February 2013, the Veteran's representative submitted a statement saying the Veteran was satisfied with the 70 percent evaluation for his PTSD. In a statement received by the RO on December 18, 2013, the Veteran indicated that he had no memory of notifying his representative that he was satisfied with his PTSD rating or that he wished to withdraw his appeal for service-connected scars. The Veteran also indicated that in light of a June 2013 psychiatric hospitalization at the VAMC in Murfreesboro, he believed his disability rating for his PTSD should be 100 percent. Additionally, an April 4, 2013, letter from the Veteran's representative indicated the Veteran wished to file a claim for entitlement to service connection for a bilateral knee disorder, bilateral hearing loss, tinnitus, and individual unemployability. The RO has not yet taken any action with regard to this letter. Accordingly, the issues of entitlement to an increased ratings for the Veteran's service-connected PTSD and scars, entitlement to service connection for bilateral hearing loss, tinnitus, a bilateral knee disorder, and entitlement to individual unemployability have all been raised by the record, but have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over these claims, and they are referred to the RO for appropriate action. 38 C.F.R. § 19.9(b) (2014). REMAND The Veteran's claim for entitlement to service connection for a left lower extremity disorder is premised on an in-service event where he stepped in a "booby trap" while serving in Vietnam. Service connection is already in effect for scars on the Veteran's left leg and back, as residuals of shrapnel wounds. In August 1990, the Veteran filed a claim for, among other things, shrapnel wounds to his left lower leg, buttocks, and upper right back. A September 1990 VA examination revealed a superficial, well-healed scar in the lateral aspect of the middle of the Veteran's leg, and x-rays revealed a single, small, metallic, foreign-body in the soft tissue of the posterior aspect of the lower calf. An October 1990 rating decision granted entitlement to service connection for a scar on the upper left back and left lower leg as due to shrapnel wounds and assigned noncompensable ratings. In January 1999, the Veteran filed a claim for, among other things, a "left leg injury," and a July 1999 rating decision continued the noncompensable rating for his left leg scar. In April 2001, the Veteran filed a claim for an "increased evaluation" for his left leg, claiming he now had arthritis for which he sought service connection. In August 2002, the RO continued the noncompensable evaluation for the Veteran's shrapnel wound scars on his left leg and denied service connection for left leg arthritis. In October 2003, the Veteran filed a claim for "swelling of legs and feet caused by being wounded from stepping on a booby trap." In a rating decision mailed to the Veteran on March 25, 2004, the RO denied service connection for arthritis in the left leg because no new and material evidence was submitted and continued the noncompensable rating for his left leg scar. Within one year of that decision, on March 24, 2005, the RO received a claim from the Veteran for "arthritis from wartime leg injury (left)." An August 2005 rating decision again continued the noncompensable rating for his left leg scar and denied service connection for arthritis of the left leg. The Veteran perfected his appeal and in November 2010, the Board broadened the Veteran's claim to include entitlement to service connection for a left lower extremity disability, in addition to left lower extremity arthritis, and remanded the claim to the RO for another examination to determine the etiology and nature of the Veteran's left leg pain. The Board remand indicated that in addition to arthritis, the Veteran alleged that he had pain caused by the shrapnel wound and retained foreign bodies. In November 2013, the Board denied entitlement to service connection for a left lower leg disorder and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2015, the Court vacated the November 2013 Board decision and remanded the Veteran's claim, finding the Board had failed to provide adequate reasons or bases for its findings. Specifically, the Board failed to discuss radiographic evidence from 1990 revealing the presence of a "single small metallic foreign body in the soft tissue of the posterior aspect of the lower left calf," and similarly neglected to discuss specific, relevant findings made by the February 2011 and September 2012 VA examiners. The Veteran has claimed that after he sustained shrapnel wound injuries during service, he was medevaced to the Evacuation Hospital in Phu Bai, Vietnam, where he underwent surgery for his injuries. These medical records are not associated with the current evidence of record. Clinical records, such as hospitalization records from a military facility, are retired to the National Personnel Records Center (NPRC) for storage and are kept separately from a Veteran's service treatment records. See VA Adjudication Manual, M21-1MR, Part III, Subpart iii, 2.A.2. The record reflects that VA has not attempted to obtain these records, and on remand, the RO must request these records from NPRC, and any other appropriate records repository, in accordance with the procedures outlined in the VA Adjudication Manual. See id. The RO must make as many requests as are necessary to obtain these records and may only cease to do so if advised that the requested records do not exist or that the custodian does not have them. See 38 C.F.R. § 3.159 (c)(2) (2014). If the RO concludes that the records do not exist or that further attempts to obtain them would be futile, the RO must provide the Veteran with the required regulatory notice informing him of such. See 38 C.F.R. § 3.159 (e) (2014). Further, there are no personnel records associated with the evidence of record, and the Board finds they must be requested on remand because they may contain information pertinent to the Veteran's claim. See 38 C.F.R. § 3.159. The RO must also attempt to obtain any private records identified by the Veteran, as well as all outstanding VA medical treatment records, and must associate them with the electronic evidence of record. Id. Upon completion of the above development, the Veteran must be afforded the appropriate VA examination(s) to determine whether any diagnosed left leg disorder is related to his active duty service, to include as due to his in-service injury. Radiographic testing must be conducted in conjunction with this examination and the examiner must discuss the results in the examination report. In a December 2013 letter to the Board, the Veteran requested that the Board review the findings from a VA physical therapy visit on November 21, 2013, with Dr. M. The Veteran indicated that Dr. M. confirmed that if muscle layers were not re-stitched correctly, as might happen in a field hospital, that they would not heal properly. The Veteran asserted that he believed that as well as possibly misalignment of veins and arteries during that surgery caused his left leg disorder. In the new VA examination report, the examining physician must discuss these potential theories. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. Regardless of the Veteran's response, in accordance with VA Adjudication Manual, M21-1MR, Part III, Subpart iii, 2.A.2.c., the RO must request clinical hospitalization records from the Medical Evacuation Hospital in Phu Bai, Vietnam from approximately June or July 1967. All outstanding VA treatment records must also be associated with the electronic evidence of record. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. See 38 C.F.R. § 3.159(e) (2014). 2. Following completion of the above development, the Veteran must be afforded the appropriate VA examination(s), to determine whether any left lower extremity disorder found, to include degenerative arthritis, is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include radiographic testing, must be accomplished. The claims file in the form of electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's lay statements, the examiner must state whether it is at least as likely as not (50 percent probability or more) that any diagnosed left lower extremity disorder is related to the Veteran's active duty service, to include any injuries sustained during service and any surgery as a result of those injuries. The examiner must specifically consider and discuss: * The Veteran's lay statements, which are competent evidence regarding the shrapnel wound of the left lower leg he experienced in service and the pain in that area he has experienced since service; * Any hospital records received relating to the Veteran's in-service injury; * October 1990 radiographic evidence of a single, small, metallic, foreign-body in the soft tissue of the posterior aspect of the left lower calf; * Radiographic testing results obtained in conjunction with the instant examination; * November 13, 2013, VA physical therapy treatment notes and the Veteran's assertion that his VA physical therapist informed him that if muscle layers were not re-stitched correctly, as might happen in a field hospital, that they would not heal properly; * Whether any left leg disorder found is due to misalignment of veins and arteries relating to the Veteran's in-service surgery. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed by the RO to ensure that it is in complete compliance with the directives of this remand. If deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any additional development deemed necessary, the RO must readjudicate the Veteran's claim. If any benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).