Citation Nr: 1614180 Decision Date: 04/07/16 Archive Date: 04/25/16 DOCKET NO. 09-48 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES Entitlement to an initial rating in excess of 10 percent, prior to May 14, 2014, and greater than 20 percent after May 14, 2014, for right sciatica with hamstring spasms. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran had active military service from December 1979 to March 2002. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a May 2009 rating decision of the VA Regional Office (RO) in Roanoke, Virginia. Following the perfection of his appeal, the appellant and his wife provided testimony at a hearing before the undersigned. A transcript of the hearing has been associated with the claims file. After the hearing, the Board subsequently remanded the claim to the Agency of Original Jurisdiction (AOJ) for the purpose of obtaining missing medical records and to have the appellant undergo a medical examination so that the severity of his disorder could be determined. The Remand was dated March 2014. The claim has since been returned to the Board for review. Regrettably, the appeal is once REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND As reported above, the Board remanded the appellant's claim in March 2014. More specifically, the Board determined that the AOJ should accomplish the following taskings: 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received from the Hampton VAMC, from Langley Hospital, and from any other providers identified by the Veteran. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Then, accord the Veteran an appropriate VA examination to determine the severity of his service-connected right sciatica with hamstring spasms. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is also requested to report all pertinent manifestations and symptomatology of the service-connected right leg disability. In particular, the examiner should opine as to whether the symptomatology is results in "slight," "moderate," "moderately severe," or "severe" incomplete paralysis or complete paralysis. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity that this question is outside the scope of a medical professional conversant in VA practices. . . A review of the claims folder indicates that the appellant did provide specific information as to where he has received treatment for the disorder currently on appeal. He noted that he had received treatment at his local VA facility and he also reported that he had received, via TRICARE, at the Langley Air Force Base in the tidewater of Virginia. It should be noted this military installation has been renamed as the Joint Base Langley-Eustis and it is formally known as the 633rd Medical Group, located at 77 Nealy Avenue, Langley Air Force Base, Virginia 23655. Even though the appellant informed the AOJ of location of these TRICARE records, the VA records reveal that the AOJ never sought to obtain these records. Hence, during the whole course of this appeal, the file is missing records that, per the appellant, show treatment for his service-connected disorder. The Board would further point out that in its Remand instructions, the Board informed the AOJ that not only should all of the appellant's missing medical records should be obtained and included in the claims file for review, but the AOJ should not schedule the appellant for a medical appointment for the evaluation of his service-connected disorder until after all of the medical records had been obtained and included in the file for review. Again, the record shows that while the AOJ obtained the VA records, the other federal records (the TRICARE reports and records) were not requested or obtained. The United States Court of Appeals for Veterans Claims, hereinafter the Court, has noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this instance, the Board finds that the examination results are inadequate because the examiner did not have all of the appellant's treatment records before him contrary to the instructions given to the AOJ by the Board. Stegall v. West, 11 Vet. App. 268 (1998). Hence, in conjunction with the Court's dictates, this appeal is returned to the AOJ so that all of the appellant's medical records may be obtained and another examination may be accomplished and complete and definitive opinions concerning the severity of the disorder may be obtained. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). However, identification of specific action requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Therefore, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claims, the case is REMANDED to the AOJ for the following development: 1. The AOJ should contact the appellant and ask that he identify all sources of medical treatment received since his retirement from service for the disability now on appeal, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified (to include any TRICARE records and other medical records possibly located at the medical facility at Langley Air Force Base, also known as Joint Base Langley-Eustis, the 633rd Medical Group, located at 77 Nealy Avenue, Langley Air Force Base, Virginia 23655). Copies of the medical records from all sources, including VA records, (not already in the claims folder) should then be requested. The AOJ is hereby put on notice that Langley Air Force Base records should be viewed as federal records. The AOJ should specifically contact the medical facility at Langley Air Force Base and request any and all records that it may have concerning the appellant. In making this request, the AOJ should specifically inform the medical facility that the appellant is "retired military" and note that his records may be held in a location different from active duty or dependent records. All records obtained should be added to the claims folder. If requests for any treatment records are not successful, the AOJ should inform the appellant of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159 (2015). 2. Only after all of the appellant's medical records have been obtained and included in the claims file for the review, the AOJ should then arrange for appropriate examination of the appellant's lower extremities and back so that the nature and severity of the appellant's right sciatica with hamstring spasms may be discovered. The examination should be accomplished by a physician and not by an individual who has previously examined the appellant. The electronic claims folders, including any documents obtained as a result of this Remand, should be made available to the examiner for review before the examination. The examiner are asked to indicate that he or she has reviewed the electronic claims folders. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to report all pertinent manifestations and symptomatology of the service-connected right leg disability. In particular, the examiner should opine as to whether the symptomatology is results in "slight," "moderate," "moderately severe," or "severe" incomplete paralysis or complete paralysis, and the examiner should also comment on whether there is any decrease in range of motion or functioning of the leg as a result of the disorder. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity that this question is outside the scope of a medical professional conversant in VA practices. As stated, the medical examiner must provide a comprehensive report including rationales for all opinions and conclusions, citing the objective medical findings leading to the examiner's conclusions. In the examiner's report, the examiner must specifically discuss the appellant's contentions concerning the severity of the disorders and the symptoms he believes are manifested by the disability. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). The results proffered by the examiner must reference the complete claims folders and any inconsistent past diagnoses given. 3. The AOJ should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the deficient report must be returned for corrective action. 38 C.F.R. § 4.2 (2015); see also Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the AOJ should readjudicate the issue on appeal. If the benefits sought on appeal remain denied, the appellant and his accredited representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The purpose of the examination requested in this remand is to obtain information or evidence (or both), which may be dispositive of the appeal. Therefore, the appellant is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2015) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ 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) (2015).