Citation Nr: 1607772 Decision Date: 02/29/16 Archive Date: 03/04/16 DOCKET NO. 09-31 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a bilateral leg disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from May 1964 to March 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Indianapolis, Indiana Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal was remanded for further development in December 2013, and it now returns to the Board for appellate review. The Veteran indicated in his August 2009 substantive appeal that he wished to testify at a hearing. VA scheduled a hearing for October 2009 and notified the Veteran in a September 2009 letter. In a letter dated in October 2009, the Veteran notified VA that he wanted to cancel the hearing. Therefore, his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.704(e) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The December 2013 remand was issued so that a VA opinion could be obtained because additional, relevant private treatment records had been added to the claims file since the November 2006 VA examination and opinion. The November 2006 VA examiner had associated the Veteran's leg disabilities with his diabetes, hypertension, elevated triglycerides, and peripheral neuropathy, but the newly received evidence showed treatment of the legs in 1988 many years before those disabilities were diagnosed. Consequently, another opinion was requested. The addendum opinion was obtained in February 2014, but the Board determines that this opinion did not comply with the Board's December 2013 remand orders. The February 2014 opinion states that the Veteran's present bilateral leg disabilities are less likely as not caused by or a result of military service. However, the rationale only refers to the Veteran's in-service leg treatment without consideration of the treatment of the Veteran's legs in 1988, as specifically ordered by the remand. Therefore, the appeal must be remanded so that another VA opinion may be obtained that is compliant with the Board's prior remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, in February 2014, the Veteran submitted release forms for private treatment records for Dr. Macaluso, Dr. Laws, and Dr. Gourieux. Records from Dr. Macaluso were already associated with the claims file at that time, and the Veteran indicated that Dr. Gourieux's office had reported that all records had been forwarded to VA. However, the record does not indicate that any efforts were made to obtain the records of Dr. Laws. The release form has medical literature attached to it, but not treatment notes. Therefore, the appeal must also be remanded so that these outstanding private treatment records may be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the treatment notes from Dr. Laws as identified on the February 2014 release form. All attempts to obtain these records must be documented in the claims file. The AOJ must make two attempts to obtain private treatment records unless the first attempt demonstrates that further attempts would be futile. If the records are not obtained, the RO must (1) inform the Veteran of the records that were not obtained (2) tell the Veteran what steps were taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records but that if he later submits them, the claim may be reconsidered. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 § 505 a, Pub L 112-154, 126 Stat 1165, August 6, 2012) (codified as amended at 38 U.S.C.A. § 5103A(b)(2)(B)). 2. After any additional records are associated with the claims file, request another opinion from an appropriate VA examiner. The claims file must be provided to the examiner in conjunction with the examination. After review of the claims file, the examiner should respond to the following: Is it at least as likely as not (i.e. a 50 percent probability or more) that the Veteran's current circulatory problems are related to service? Is it at least as likely as not (i.e. a 50 percent probability or more) that the Veteran's cellulitis is related to service? In forming this opinion, the examiner must consider and discuss the private medical records that indicate treatment for leg problems with quinam and trentol in February 1988 and April 1988. The examiner should be aware that at times the Veteran has indicated that his current leg disorder manifests as a circulatory problem and at times that it manifests as cellulitis. When opining on the relationship of his current disorder to service, the examiner should provide an opinion regarding whether either disorder-cellulitis or circulatory problems-is causally related to service. If the addendum opinion cannot be provided without another clinical examination of the Veteran, such examination should be scheduled. 3. After completing the above development, and any other development deemed necessary, readjudicate the issues remaining on appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and her representative and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).