Citation Nr: 1752402 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 11-06 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a neurological disorder. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1989 to January 1993, with service in Southwest Asia. He is the recipient of the Good Conduct Medal, a Bronze Star, and the Army Achievement Medal, among others. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a March 2010 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) Muskogee, Oklahoma. The case is now within the jurisdiction of the VARO in Waco, Texas. This case was previously before the Board in September 2014. At that time, the Board allowed reopening of the claims for left knee and low back disabilities and remanded the claims for further development. This case was again before the Board in October 2016. At that time, the Board remanded the claims for further development. The claims are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND The Board finds that additional development is needed before the claims on appeal can be decided. Although the Board regrets the additional delay due to this remand, it finds that it is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2017). With regard to the Veteran's neurological disorder claim, the October 2016 Board noted that the May 2015 VA neurological examination related solely to findings for a central nervous system condition. However, the examiner failed to take into consideration any neuropathy. In August 1995, the Veteran reported intermittent neuropathies with weakness and hand grip, and neuropathy involving the upper extremity. In January 1999 he reported right leg weakness and neuropathy type sensation on the right upper leg. It was also reported that he had some slight paresthesia, and anesthesia of the lateral right thigh. Next, in April 2012 the Veteran reported paresthesia and the treatment provider noted there may be neuropathy as due to diabetes mellitus. In a June 2017 VA examination addendum, the examiner opined that "further evaluation of a possible neuropathy or other neurologic diagnosis not related to the CNS would require a new evaluation." No VA examination has been conducted related to the Veteran's neuropathy. In fact, the Board notes that the May 2015 VA examination specifically states the examination includes central nervous system and neuromuscular diseases except those listed, which include peripheral neuropathy. Hence the Board finds that additional development is warranted. See Daves v. Nicholson, 21 Vet.App. 46, 51-52 (2007) ("Where, as here, the medical examiner specifically states that a medical opinion cannot be provided without information not currently available, the Secretary's duty to assist requires that the Secretary determine whether that information may be reasonably obtained, and if so, to make efforts to obtain it and seek an additional medical opinion which considers the relevant information."). With regard to the Veteran's claimed left knee and low back disabilities, the Veteran contends that these disabilities as secondary to his service connected right knee disability. In October 2016, the Board remanded these claims to obtain an addendum opinion. A June 2017 addendum opinion provided that the left knee and lumbar strain disabilities are not secondary to the Veteran's right knee disability and more likely associated with overuse. However, the addendum failed to provide any supporting rationale, frustrating the Board's review. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet.App. 120, 125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). Accordingly, additional examinations and opinions are warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. The AOJ should schedule the Veteran for VA examination to determine the nature and etiology of any neurological disorder, to include peripheral neuropathy. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should specifically note the June 2017 examiner's opinion that evaluation of a possible neuropathy or other neurologic diagnosis not related to the CNS would require a new evaluation and conduct any necessary testing. The examiner must also elicit from the Veteran a history of his symptoms, to include whether he experienced any symptoms during service. The Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide diagnoses, as appropriate, for any neurological disorder, to include peripheral neuropathy. If any previously diagnosed disorders are no longer present, the examiner must provide an explanation. The examiner should opine whether it is at least as likely as not (50 percent probability or more) that the Veteran has a neurological disorder that manifested in, or is otherwise related to, the Veteran's military service. The examiner should also opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran has an undiagnosed illness manifested by neurological signs or symptoms. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The AOJ should schedule the Veteran for VA examination to determine the etiology of any left knee an low back disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran left knee or low back disabilities were caused or aggravated by the Veteran's service-connected right knee disability. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the claims file and ensure that the foregoing development actions have been conducted and completed. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity 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 or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ ANTHONY C. SCIRÉ, JR. 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) (2017).