Citation Nr: 1647701 Decision Date: 12/22/16 Archive Date: 01/06/17 DOCKET NO. 12-30 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right leg disability. 3. Entitlement to service connection for a left leg disability. 4. Entitlement to service connection for a right hip disability, to include as secondary to bilateral leg disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1968 to June 1970, to include service in the Republic of Vietnam from May 1969 to June 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2016. A transcript of that hearing is of record. For the reasons stated below, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). In this case, the Board finds that further development is required in order to comply with the duty to assist. As an initial matter, the Board notes that the Veteran has reported, to include at his May 2016 hearing, that he has been treated for his low back, both legs, and right hip through VA. However, while VA treatment records are on file for a period from June 2006 to September 2012, the Veteran indicated more recent treatment at his hearing. As such, he has indicated there are VA medical records that are not on file. Further, in a September 2010 statement, the Veteran reported he had a card from the Hines VA hospital in Chicago, Illinois, from 1970 which demonstrates he tried to get evaluated for his right leg at that time. Nevertheless, this card does not appear to be of record, and this contention indicates there may be other potential VA medical records from that facility which are not on file. Relevant statutory and regulatory provisions emphasize the importance of obtaining VA records as part of the duty to assist. See 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2) ; see also Bell v. Derwinski, 2 Vet. App. 611 (1992); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). Consequently, the Board concludes that it must remand this case in order to obtain any such records. The Board further notes the Veteran has contended he developed disabilities of the low back, legs, and right hip as a result of injuries sustained while on active duty in May 1969 and June 1970. He reported that in May 1969 he was on a flight in Vietnam that had a hard landing and that the impact jolted his body so hard he lost his breath for a period of time during which he injured his low back and right leg. Additionally, in June 1970 he reported that his base came under a rocket attack; that while running for cover his leg was hit by debris, causing him to fall; and that he limped for several days after that injury. Moreover, he has contended that his right hip developed as a result of his bilateral leg disabilities. The Veteran has also indicated, to include at his May 2016 hearing, that he received treatment after service from various private clinicians, but that they are now deceased and such records are unavailable. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Further, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Here, the Board acknowledges that the Veteran is competent to describe the type of injuries he relates occurred in May 1969 and June 1970. The Board also notes that private medical records dated in March 1980 reflect the Veteran reported an old war injury to the right calf, which he indicated was due to a rocket attack. As such, it appears consistent with his account of such injury in June 1970. The March 1980 record further note complaints of low back and left leg pain. Thus, it supports the Veteran's credibility on these matters. In addition, there are private medical opinions which support the Veteran's contentions. For example, an April 2010 statement from Alexander Orthopaedic Associates noted the Veteran had osteoarthritis of the right hip, and opined that it was greater than not related to his military service. More recently, statements dated in April and May 2016 from a private chiropractic physician include opinions that the Veteran's current spinal (low back) and right hip conditions were more likely than not resulting from his blunt force trauma in May 1969 and June 1970 while serving in the military. Despite the foregoing, the Board notes that the exact nature of the Veteran's claimed disabilities is not clear from the evidence of record, particularly his claimed disabilities of the legs. Further, there is no indication of the claimed injuries in the service treatment records; or any other entries showing treatment for or a diagnosis of disabilities regarding the low back, legs, and/or right hip. In fact, his spine and lower extremities were clinically evaluated as normal on his June 1970 separation examination. There is also a reference to bilateral leg injuries in August 1968 on a Report of Medical History completed in conjunction with the Veteran's November 1968 induction examination, although the lower extremities were evaluated as normal on the induction examination itself. Moreover, while the Veteran has reported seeking treatment for the claimed disabilities beginning in 1970, the first competent medical evidence of such disability appears to be the aforementioned March 1980 private medical record which is over 9 years after his separation from service. The United States Court of Appeals for Veterans Claims (Court) has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service can be probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). In view of the foregoing, the Board finds that the nature and etiology of the Veteran's claimed low back, bilateral leg, and right hip disabilities is not clear from the evidence of record. Therefore, a remand is required to accord the Veteran a competent medical examination to clarify these matters. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). The Board further notes that it is not clear whether additional records may be available from Alexander Orthopaedic Associates that provided the April 2010 supporting statement; or the private chiropractic physician who provided the April and May 2016 supporting statements. Consequently, the Board finds a remand is also required to obtain any such records. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records. In pertinent part, follow-up on the Veteran's account of seeking treating at the Hines VA Hospital in Chicago, Illinois, in 1970, to include requesting a copy of the appointment card from the Veteran; and follow-up on the Veteran's account of more recent VA medical treatment as noted at his May 2016 hearing. 2. Request the names and addresses of all medical care providers who have treated the Veteran for his low back, legs, and right hips since September 2012. He should also be requested to provide a release for any records from Alexander Orthopaedic Associates who providing the supporting April 2010 statement, as well as for the private chiropractic physician who provided the April and May 2016 supporting statements. After securing any necessary release, obtain those records not on file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service low back, bilateral leg, and right hip symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the nature and etiology of his claimed disabilities of the low back, both legs, and right hip. The claims folder should be made available to the examiner for review before the examination. For any pertinent disability found to be present, the examiner should express an opinion as to whether it is at least as likely as not it was incurred in or otherwise the result of his active service. In making this determination, the examiner should be apprised that the Veteran's account of injuries from a hard plane landing in May 1969 and a right leg injury in June 1970 has been deemed competent and credible for purposes of this case. If the examiner determines the right hip disability is not directly related to service, he or she should express an opinion as to whether it is at least as likely as not it was caused or aggravated by any leg disability found to be present. By aggravation, the Board means a permanent increase in severity that is beyond natural progression. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. After completing any additional development deemed necessary, readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the September 2012 SOC, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).