Citation Nr: 1804662 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-02 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an enlarged spleen. 2. Entitlement to service connection for a bilateral foot disability. 3. Entitlement to service connection for a bilateral hip disability, to include as secondary to his bilateral knee disabilities. 4. Entitlement to service connection for a cervical spine disability, claimed as a neck condition. REPRESENTATION Veteran represented by: Everett McKeown, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from April 1974 to September 1976. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran was afforded a February 2016 videoconference hearing before the Board, and a copy of the transcript has been associated with the record. In May 2016, the Board remanded the above matters to the AOJ for further evidentiary development, which included providing VA examinations regarding the Veteran's claims for service connection. The Board is obligated by law to ensure that the AOJ complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AOJ has complied with some of the Board's remand directives. Unfortunately, when it comes to the Veteran's claim for service connection for a hip and cervical spine disability the VA examination provided to the Veteran have been found inadequate. The issues of service connection for a cervical spine disability and bilateral hip disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has not been diagnosed with a spleen disability at any time during the pendency of his claim. 2. The Veteran has not been diagnosed with a bilateral foot disability at any time during the pendency of his claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a spleen disability have not been met. 38 U.S.C.A §§ 1110, 5107 (West 2014), 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C.A §§ 1110, 5107 (West 2014), 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2016). VA provided adequate notice in letters sent to the Veteran in May 2010 VA satisfied its duty to assist the Veteran in the development of his claim and to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2016). The AOJ associated the Veteran's service treatment records, service personnel records, identified private treatment records and VA treatment records with the claims file. In July 2017, VA provided the Veteran with a medical examination and obtained a medical opinion on the Veteran's claimed feet and spleen disabilities addressing whether the Veteran had a respiratory disability. The examination and opinion are adequate as the examination report shows that the examiner considered the relevant history of the Veteran's respiratory concerns. The examiner provided a sufficiently detailed description of these disabilities, and the examiner provided an analysis to support his opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103 (a), § 5103A, or 38 C.F.R. § 3.159 (2016), and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims decided herein. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Merits There is no evidence of record, VA or private, showing that the Veteran has been diagnosed with a bilateral foot or spleen disability. As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet App 319 (2007). The Veteran asserts that he has pain in his feet and that he a medical scan led to a report of an enlarged spleen. It was on this basis which the Board requested VA medical examination wherein a VA medical examiner found that there was no underlying diagnosis of either the bilateral foot disability or the Veteran's enlarged spleen. Without a diagnosed or identifiable underlying malady or condition, the Veteran's symptoms do not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet App 282 (1999). There are no other findings of a current disability related to the Veteran's bilateral feet or enlarged spleen. In light of the absence of any competent evidence of a disability, this claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Entitlement to service connection for a bilateral foot disability is denied Entitlement to service connection for an enlarged spleen is denied. REMAND Regrettably, a remand is necessary for further evidentiary development of the Veteran's claim for service connection for a neck disability and bilateral hip disability. Examination Inadequate - Cervical Spine The July 2017 VA examinations were, in part, inadequate. In the opinion provided regarding the Veteran's neck disability, the examiner did not address the Veteran's statement regarding his neck disability and a possible relationship between his neck disability and his current service connected disability even though he was instructed to do so. In particular the Board's remand cautioned, "[t]he examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion." Despite this caution the examiner opined "STR silent and no neck problem until 2009." The Board as it earlier stated finds this type of rationale insufficient. As such, the Board finds that there has not been substantial compliance with the Board May 2016 remand directives and a new examination is warranted. See Stegall, supra. Examination Inadequate - Bilateral Hip Disability The July 2017 VA examiner noted that the Veteran had a bilateral hip disability that has hence resolved. However, he did not comment on any potential etiology between the historical disability and his service connected orthopedic disabilities to include his bilateral knee disabilities. See McClain, supra (a current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending). Thus, the Board finds that a new examination is warranted to ensure compliance with the May 2016 remand directives. See Stegall, supra. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. Regardless of the Veteran's response, VA treatment records should be collected from the: C. W. Bill Young VA Medical Center (VAMC) in Bay Pines, Florida and all associated outpatient center and clinics. In particular, the AOJ should retrieve VA treatment records from June 2016 to present should be collected. Any archived records should be retrieved from storage. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2.. Then, after pertinent records are obtained, but whether or not records are obtained, schedule the Veteran for VA examination(s) to determine the nature and etiology of his (1) bilateral hip and (2) cervical spine disabilities. The examiner(s) should be provided access to Virtual VA and VBMS for claims folder review and such review should be documented in the report. All necessary diagnostic tests, as determined by the examiner, should be completed and all pertinent symptomatology and findings should be reported in detail. The examiner is on notice that if the Veteran had a bilateral hip disability during the course of the appeal period, even if it has currently resolved, the examiner must address the following questions as to when the disability existed prior to its resolution. The examiner(s) should then render opinions as to: (1) Whether it is at least as likely as not (50 percent probability or greater) that any bilateral hip and/or cervical spine is related to service or any incident therein. (2) If not, then the examiner(s) should also opine as to whether it is at least as likely as not (50 percent probability or greater) that the bilateral hip and/or cervical spine disabilities were (a) caused by or (b) aggravated (chronically worsened) by any service-connected orthopedic disabilities, to include service-connected right and left knee disabilities, and lumbar spine disability. In the event that the examiner finds that the bilateral hip disability is at least as likely as not related to service or a service-connected disability, he should then opine as to whether cervical spine disability is (a) caused (50 percent probability or greater) or (b) aggravated (permanently worsened) by the bilateral hip disability. In the event that the examiner finds that the cervical spine disability is at least as likely as not related to service or a service-connected disability, he should then opine as to whether the bilateral hip disability is (a) caused (50 percent probability or greater) or (b) aggravated (permanently worsened) by the cervical spine disability. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would. 3. If any benefit sought on appeal is not granted, the AOJ should issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs