Citation Nr: 1644489 Decision Date: 11/25/16 Archive Date: 12/02/16 DOCKET NO. 13-00 565A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for left thigh muscle atrophy, claimed also as left leg injury. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active duty training (ADT) in the Marine Corps Reserve from November 1976 to May 1977; he also had periods of unverified ADT and periods of unverified inactive duty training (IDT). This matter is before the Board of Veterans' Appeal (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2016 a videoconference hearing was held before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the Veteran's record. At the hearing the Veteran requested and was granted a 60-day abeyance period for the submission of additional evidence. The Veteran also granted waiver of initial consideration by the RO of any additional evidence received. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND During his December 2010 VA (fee basis) examination, the Veteran reported that he served 8 years in the Marines, from November 1976 to October 1984. The DD-214 of record shows he had ADT in the Marine Corps Reserve from November 1976 to May 1977. The remaining period from May 1977 to October 1984 is unverified, and the Board is not able to ascertain the Veteran's type of service (ADT or IDT) for that period. The term "active military, naval, or air service" includes active duty, any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of IDT during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). 38 U.S.C.A. § 101(24) makes a clear distinction between those who have served on active duty for training, as well as those who have served on inactive duty for training. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). On remand, the AOJ should request official records which include a breakdown of all periods of ADT and IDT from the National Personnel Records Center (NPRC), the service department, the Marine Corps Reserve, or from any other appropriate source as necessary to obtain complete records. See 38 U.S.C.A. § 5103A(a),(c). Such records may be relevant to the issue of entitlement to service connection for left thigh muscle atrophy/left leg injury on appeal. The Veteran contends that in August 1977, while on active duty reserves on a training mission at the Marine's base at Twenty-nine Palms, he fell and hit a tent stake. He was taken to the hospital where he was admitted for 3 days. Military health records reveal an August 29, 1978 medical report that notes the Veteran suffered severe laceration above the left knee after falling on a metal tent stake. He was taken to the emergency room at 29 Palms where 35 stitches were inserted. He was unable to bear weight on his left leg. A July 1980 medical report shows the Veteran reported to physical/occupational therapy with complaints of pain involving the whole leg and some weakness. In that same month (July 1980), it was noted in a physical therapy report that the Veteran was 2 years status post left leg laceration, and now with pain, weakness and some atrophy of the left calf. A weight-lifting program to strengthen and rehabilitate the left calf was suggested. There was no loss of sensation. The assessment was decreased strength and pain. It was reported in a July 1981 medical report that the Veteran had a 3-year old laceration scar on the left lateral distal thigh and complained of pain in the area and weakness of the leg. Postservice in December 2010 the Veteran underwent a VA (fee basis) examination (report dated in January 2011), which included an evaluation of the left leg. At the examination, the Veteran reported that his left leg disorder was due to trauma/injury and had existed for 32 years. He stated the trauma occurred when he hit his left leg on a tent stake, and over time it worsened. At the time of the examination, he was not receiving any treatment for his left leg disorder. The diagnosis was status post laceration of left quad, residual scar, bilateral patellofemoral syndrome. The subjective factors were history of the disorder; and the objective factors were a scar and range of motion. This examination did not include a nexus opinion and rationale, and therefore it is inadequate for rating this matter. The United States Court of Appeals for Veterans Claims (Court) has held that once VA has provided a VA examination, it is required to provide an adequate one regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, the Court has held that an examination that provides an etiology opinion without a rationale is inadequate. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Consequently, the Board concludes that a remand is required in order to accord the Veteran an examination that adequately addresses his service connection claim. Since the Board has determined that a new examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 address the consequences of a Veteran's failure to attend scheduled medical examinations. The Board further finds that any outstanding medical records regarding the claimed disabilities should be obtained while this case is on remand. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request official records which include a breakdown of the periods of ADT and IDT (specifically note which dates corresponds to ADT and IDT) from the NPRC, the service department, the Marine Corps Reserve, or from any other appropriate source as necessary to obtain complete records. These records should be associated with the Veteran's record. If there are no additional service personnel records, documentation used in making those determinations should be set forth in the Veteran's record. The AOJ should review all such records to ascertain whether the Veteran had ADT or IDT on August 29, 1978, when the left leg injury occurred. 2. The AOJ should also secure all available Marine Corps Reserve service treatment records pertaining to such service that are not already of record. 3. The AOJ should contact the Veteran and obtain the names and addresses of all medical care providers who treated him for his left leg disorder. After securing the necessary releases, obtain these records; and any VA treatment records for the claimed disorder. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 4. After obtaining any additional records to the extent possible, the AOJ should schedule the Veteran for a medical examination for his left thigh muscle atrophy/left leg disorder by a VA examiner to determine the nature and etiology of such disorder. The record must be made available to the examiner for review. The examiner must offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the left thigh muscle atrophy/left leg disorder had its onset during, or related to, an injury sustained during any corroborated IDT periods or a disease incurred or injury sustained during any corroborated ADT periods, including specifically the reported August 29, 1978 injury to the left thigh/leg when he fell on a metal tent stake. The examination report must include a complete rationale for all opinions expressed. 5. Thereafter, readjudicate the claims on appeal. If any determination remains unfavorable to the Veteran, he and his representative must be furnished a supplemental statement of the case which addresses all evidence associated with the Veteran's record since the last statement of the case. The Veteran must be afforded the applicable time period in which to respond before the record is returned to the Board for further review. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).