Citation Nr: 1601927	
Decision Date: 01/15/16    Archive Date: 01/21/16

DOCKET NO.  08-23 869	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for a left leg condition, to include residuals of a lower left leg injury.

2. Entitlement to service connection for a left leg scar.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Pryce, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 1967 to April 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Huntington, West Virginia. 

In April 2011, the Veteran was scheduled for a hearing before a Veterans Law Judge via live videoconference, however, the Veteran failed to appear for that hearing and the Board deemed his hearing request to be withdrawn.  To date, neither the Veteran nor his representative has requested a new hearing.

As a matter of background, in June 2012, the Board remanded this matter for further development, to include scheduling the Veteran for a VA examination in connection with his claim.  Thereafter the Veteran was scheduled for an examination of his left leg, but failed to appear for that examination.  

In May 2014, the matter was returned to the Board at which time it denied the claims on appeal for service connection for a right leg, right knee, and left knee disability.  It also remanded the claims for a left leg and left ankle disability for additional development, including affording the Veteran a new VA examination of his left leg.  

In November 2014, following the completion of the development ordered by the Board in its most recent remand, the RO issued a rating decision in which it granted service connection for residuals of a left ankle sprain, and assigned a disability rating for that condition.  As that constitutes a complete grant of the benefit sought on appeal with regard to that issue, the Board finds that the issue of service connection for a left ankle condition is no longer on appeal.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

The scope of a disability claim includes any disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and other information of record.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  After a careful review of the Veteran's claim and the evidence of record, the Board infers that the claim for service connection for a left leg condition, to include residuals of a lower left leg injury, also includes a claim for service connection for any residual left leg scars from a stab wound sustained during combat.  Accordingly, that issue has been added to the claim on appeal and is addressed separately from any other residuals below.

The issue of entitlement to service connection for a left leg condition, to include residuals of a lower left leg injury, is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


FINDING OF FACT

The Veteran sustained an injury to his left leg during service from a pongee stick stab wound that occurred during an artillery assault while serving in the Republic of Vietnam, resulting in a linear scar 3.2 cm in length with an area of superficial numbness 7 cm by 3 cm extending above the scar.


CONCLUSION OF LAW

The criteria for service connection for a left leg scar have been met.  38 U.S.C.A. §§ 1110, 1154, (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014).  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).  

In its May 2014 decision and remand, the Board conceded that the Veteran injured his left leg during service from a pongee stick stab wound that occurred during an artillery assault while serving in the Republic of Vietnam.  38 U.S.C.A. § 1154(b).  

Following the May 2014 remand, the Veteran was afforded a VA examination in connection with his claim for a left leg injury.  In that examination, the Veteran was found to have a single, linear scar, 3.2 cm in length, with an area of superficial numbness roughly 7 cm by 3 cm, extending above the scar.  The examiner attributed that scar to the wound sustained in service during the artillery attack.  

In light of the above, the Board finds that service connection for a left leg scar is warranted.  


ORDER

Service connection for a left leg scar is granted.  


REMAND

Once VA undertakes to provide an examination in connection with a service-connection claim, it must ensure an adequate one.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  A medical opinion will be considered adequate when it is based upon consideration of the Veteran's prior medical history and examinations and provides a sufficiently detailed description of the disability so that the Board's evaluation will be a fully informed one.  Id.; Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

In August 2014 the Veteran was afforded a VA examination in connection with his claim.  While the Board, in its prior remand, explicitly limited the examination to be conducted to the left leg and left ankle, the Veteran was given an examination which focused, almost entirely on the left knee.  The examination did note an injury to the lower leg and referred to a scars examination, but stated that there was no history of tibia or fibula impairment.  (As addressed below, the examiner also subsequently denied that the left leg injury occurred).  However, the Board notes that the Veteran's VA treatment records show complaints of leg pain with a possible indentation in the tibia in April 2006.  At no point in the examination report does the examiner address these prior complaints, and the examiner stated that imaging studies were not conducted.  Thus, the Board is unable to rely upon the statement that there is no history of tibia or fibula impairment, nor any other leg injury, as it is not clear that a complete examination of the lower leg was conducted.  

Additionally, the Board has previously conceded that the Veteran sustained an injury to his left leg during service from a pongee stick stab wound that occurred during an artillery assault while serving in Vietnam.  See 38 U.S.C.A. § 1154(b).  In its previous remand, the Board explicitly instructed the examiner to consider this in-service injury.  However, the examiner ruled out any possible in-service connection for the Veteran's reported symptoms, specifically rejecting that any in-service injury occurred.  In support of that conclusion, he cited to the lack of evidence of the injury in the Veteran's service treatment records.  The Board finds this to also be inadequate as it explicitly denies an injury that VA has conceded occurred, and because the Board cannot state with certainty that the reported symptoms are attributable to that injury.  Thus, the Board finds that a new examination should be conducted that completely evaluates any possible residuals of the pongee stick stab wound.  

Accordingly, the case is REMANDED for the following action:

1. After associating any pertinent, outstanding records with the claims folder, schedule the Veteran for an examination of his left leg with an orthopedist.  A complete copy of the record, including all medical evidence and a copy of this remand, should be made available to the examiner for review.  Any and all testing deemed necessary, including imaging studies, should be conducted.  The examination should focus on the leg.

The examiner is requested to conduct a thorough examination and provide a diagnosis for any left leg condition found.  If no condition can be diagnosed, then a discussion of how that conclusion was reached must be provided.  

For each diagnosed condition, the examiner should then state whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the condition is related to any incident or injury sustained during active military service.

In addressing the above questions, the examiner should consider the Veteran's complete medical history.  The examiner is reminded that, in addition to any and all documented injuries in the Veteran's service treatment records, VA has conceded that the Veteran sustained a pongee stick stab wound in Vietnam, and therefore, the examiner should treat that injury as though it were documented.  Additionally, the examiner should address the Veteran's prior complaints, including an allegation of a tibial indentation in 2006 with lower leg pain.  

All opinions and diagnoses must include a discussion of the rationale used in reaching each conclusion, and should include citation to evidence in the record, medical treatise evidence, and/or known medical principles.   

2. Thereafter, readjudicate the claim in light of all evidence of record.  If the Benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and afford adequate time to respond before returning the matter to the Board for further appellate 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 2014).


_________________________________________________
STEVEN D. REISS
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) (2015).


Department of Veterans Affairs