Citation Nr: 1802977 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 12-27 586A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for bilateral foot numbness. ATTORNEY FOR THE BOARD A. Diaz-Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1963 to April 1965. This matter comes before the Board of Veterans' Appeals (Board) from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was reopened and remanded in an April 2017 Board decision. It is now again before the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for a bilateral knee condition and for a sleeping disorder have been raised by the record in a November 2017 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). REMAND While further delay is regrettable, the Board finds additional development is necessary before deciding the Veteran's claim. The Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Upon the Board's April 2017 remand, the Veteran underwent a VA examination in September 2017. The examiner reviewed the claims file, performed an in-person examination of the Veteran, and noted the Veteran's 2010 diagnosis of diabetic peripheral neuropathy. The examiner concluded the Veteran's bilateral foot numbness was less likely than not caused by or related to his military service. The rationale for the conclusion was that the medical record shows a history of diabetic peripheral neuropathy and the service treatment records show no history of numbness in the feet while the Veteran was in service. The Board finds the examiner's medical opinion inadequate and non-compliant with the specific remand directives of the April 2017 remand. Specifically, the Board notes the remand directed the examiner, and the examiner failed, to consider and discuss the Veteran's credible statements of experiencing numbness in his feet during basic training and thereafter. The examiner also failed to discuss the Veteran's reports of walking 20 miles a day during basic training. As such, a remand is necessary to obtain an adequate medical opinion that complies with the Board's directives. On remand all relevant ongoing medical records should be obtained. 38 U.S.C. § 5103A (c) (2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If it is deemed any pertinent records do not exist, or that additional attempts to obtain these records would be futile, the record should be annotated to reflect such, to specifically include a formal finding of unavailability, and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Refer the claims file to a physician with sufficient experience and expertise to render the requested opinion. Upon a review of the record, the physician should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's foot numbness originated in service or is otherwise etiologically related to service, to include as being consequentially related to his reports of walking 20 miles a day during basic training and all other credible statements made by the Veteran whereby he referenced experiencing numbness in his feet during basic training. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale must be provided for any opinion or conclusion expressed. If the examiner is unable to provide any required opinion, he/she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).