Citation Nr: 1622414 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 09-42 097A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for residuals of cold injury of the left foot. 2. Entitlement to service connection for residuals of cold injury of the right foot. 3. Entitlement to service connection for a left ankle disability. 4. Entitlement to service connection for a right ankle disability. 5. Entitlement to service connection for a left knee disability. 6. Entitlement to service connection for a right knee disability. 7. Entitlement to service connection for diabetes mellitus, type II. 8. Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from January 1973 to January 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Jackson, Mississippi, Regional Office (RO) of the United States Department of Veterans Affairs (VA). When these issues were previously before the Board in March 2011 and March 2015, they were remanded to the Agency of Original Jurisdiction (AOJ) for additional development. At this time, the Board has recharacterized those claims regarding the lower extremities, to recognize that the left and right sides of the body are separately rated, and the Veteran is not alleging any systemic or bilateral condition; he is claiming separate disabilities of each involved joint. The Veteran testified at a personal hearing held before the undersigned via videoconference from the RO in February 2011; a transcript of the hearing is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, further remand is required to ensure full compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Initially, the Board notes that in connection with the Veteran's initial 2002 claims, the RO attempted to obtain complete service treatment records, but was unsuccessful. A request was made of the National Personnel Records Center (NPRC), but the NPRC responded that the records had been loaned to the Air Force. The unit and individual responsible for them was identified, and NPRC stated that the request for records had been forwarded, and the RO sent an email to the Air Force with a specific request as well. An undated, handwritten note on the bottom of one of the NPRC requests indicates that the Air Force did not have the records. Follow-up requests to NPRC and to VA's Records Management Center (RMC) were made, and both indicated that the Veteran's records were not located. NPRC in fact stated in November 2003 that "We have no idea where the medical records are." VA subsequently notified the Veteran of the fruitless search, and asked him to supply any copies of records in his possession. Due to a house fire, he was unable to do so, and VA declared the service treatment records to be unavailable. Some service records have been obtained based on the Veteran's reports of in-patient treatment during service; these clinical records are maintained with the facility's records, and not the individual's. NPRC has also informed the Veteran, in January 2013 correspondence, that records have been sent to VA. The Veteran's representative has argued that additional efforts are required, as no action has been taken since 2003 to locate the Veteran's service treatment records, and NPRC has now indicated the records have been located. While it is in no way clear that any regular records custodian, be it NPRC or RMC, has in fact received the records, the circumstances of prior development do raise the possibility that additional records are now available. It appears that the Air Force finished whatever task they were using them for, and then returned to files to either the RMC or the NPRC; which is unknown. It is also unknown when this was done, and whether it was contemporaneous to VA's development efforts. In other instances, files have been shown to be located at one place while they were actually in transit. It is possible that here the records and the requests "passed in the mail." Therefore, to avoid prejudicing the Veteran, remand is required for renewed requests for complete service medical records from the NPRC and the RMC, to ensure all potential custodians are contacted. Further, the Board in March 2015 remanded the claims for additional development, to include taking steps to obtain all potentially relevant private treatment records, and to obtain an adequate medical nexus opinion. Unfortunately, neither directive was accomplished. Review of the claims file fails to reveal any efforts to obtain the identified private records, and the addenda medical opinion obtained did not correct identified inadequacies. The examiner's rationale did not clearly identify the reasoning applied, and appears to impermissibly rely on the absence of documentary medical evidence without consideration of lay statements. On remand, further development to complete the Board's directive is needed. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, the Board notes that in connection with his claim of service connection for diabetes mellitus, the Veteran has alleged exposure to herbicides. Public records do show that it is possible that several barrels of such were disposed of at landfills serving Chanute Air Force Base in the late 1960's and early 1970's, and the chemicals were detected in the ground water around the time the Veteran was stationed there in 1973. Development of this aspect of the claim is required. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request properly executed, separate VA form 21-4142's, Authorization and Consent to Release Information to the Department of Veterans Affairs, for any private care providers who have treated him since January 2013 for any claimed conditions. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Take appropriate steps to request complete service treatment records from both NPRC and RMC. All efforts and responses must be documented. If records continue to be unavailable, the veteran must be properly informed of such. 3. Take appropriate steps, to include contacting the service department and the Environmental Protection Agency (EPA) to determine the extent of herbicide contamination at Chanute AFB in 1973. The AOJ must then make a determination as to the likelihood of exposure by the Veteran, and readjudicate his claim of service connection for diabetes mellitus, type II, accordingly. 4. After completion of the above, schedule the Veteran for an appropriate VA examinations or examinations to identify and assess his allegations of disabilities of the lower extremities (feet, ankles, and knees). The claims folder must be reviewed in conjunction with the examination; if the examiner does not have access to the complete electronic file, relevant records must be printed and provided for review. a) The examiner is informed that the Veteran's exposure to cold is established based on service personnel records and competent and credible lay statements. The examiner must identify all current disabilities of the feet, ankles, and knees, and must opine as to whether any at least as likely as not were caused or aggravated by a cold injury. The presence of pain with associated functional/motion impairment, as well as degenerative changes, must be discussed. b) The examiner must also address whether it is at least as likely as not that any current disability of the feet, ankles, or knees is caused or aggravated by traumas sustained in multiple slips and falls reported by the Veteran and his comrades due to working in winter conditions. A full and complete rationale for all opinions expressed must be provided. 5. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ C. TRUEBA 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).