Citation Nr: 18155173 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-51 977 DATE: December 4, 2018 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a disability of the sciatic nerve affecting the left lower extremity is remanded. Entitlement to service connection for a disability of the sciatic nerve affecting the right lower extremity is remanded. Entitlement to an initial evaluation in excess of 10 percent for the service-connected left ankle strain is remanded. Entitlement to an initial evaluation in excess of 10 percent for the service-connected left foot disability is remanded. Entitlement to an initial evaluation in excess of 10 percent for the service-connected right ankle strain is remanded. REFERRED The issue of a right foot disability was raised in a June 2014 statement and in the January 2015 notice of disagreement, and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from October 1965 to February 1969; he also served in the Air Force Reserve and Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. The issues of entitlement to service connection for a back disability, a right hip disability, a disability of the sciatic nerve affecting the left and right lower extremities, and a right knee disability are remanded. First, the Veteran was denied service connection for these disabilities in part on the grounds that they were incurred after the Veteran’s period of active duty service with the Air Force. However, the evidence of record indicates that, during his service with the Air Force Reserve and the Army National Guard, the veteran had approximately 728 days of active duty service. There is no record of any attempts to obtain the Veteran’s personnel records from the Air Force Reserve or the Army National Guard of California; as such, the Board is unable to determine whether any of these disabilities were incurred during any period of active duty, active duty for training (ACDUTRA), or inactive duty for training (INACDUTRA). Accordingly, on remand, the RO should attempt to obtain these relevant records and associate them with the claims file. Next, the Veteran reported in a June 2014 written statement that his back disability and related sciatic nerve disabilities had their onset after his left foot injury in service, which he believes is due to an alteration in his gait. Further, the Veteran’s VA treatment records indicate that his right hip and knee disabilities may likewise be due to his back disability. As there is an indication these disabilities may be secondarily related to the Veteran’s active duty service, examinations are necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. The issues of entitlement to an initial evaluation in excess of 10 percent for the service-connected left ankle strain, right ankle strain, and left foot disability are remanded. In the notice of disagreement, received in January 2015, the Veteran stated that the left and right ankle strains and the left foot disability have gotten significantly worse and have continued to change. As there is evidence these disabilities have worsened since the last evaluation, a new VA examination is necessary to determine the current severity of the Veteran’s service-connected left and right ankle strains and left foot disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Contact all appropriate sources in order to verify the specific dates when the Veteran was on active duty, and his periods of ACDUTRA and INACDUTRA from February 1969 to October 1986 as a member of the Air Force Reserve. The RO should request the Veteran’s complete service personnel records, including any line of duty determinations. All efforts to obtain the evidence must be documented in the claims file. If, after all procedurally appropriate actions to locate and secure the records have been exhausted, and it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile, make a formal finding to that effect. The RO must also provide the Veteran with proper written notice that includes: (a) the identity of the specific records that cannot be obtained; (b) an explanation as to the efforts that were made to obtain those records; (c) a description of any further action to be taken by VA with respect to the claim; and (d) notice that the Veteran is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). 2. Contact all appropriate sources in order to verify the specific dates when the Veteran was on active duty, ACDUTRA, and INACDUTRA from January 1991 to May 2005 as a member of the Army National Guard in California. The RO should request the Veteran’s complete service personnel records, including any line of duty determinations. All efforts to obtain the evidence must be documented in the claims file. If, after all procedurally appropriate actions to locate and secure the records have been exhausted, and it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile, make a formal finding to that effect. The RO must also provide the Veteran with proper written notice that includes: (a) the identity of the specific records that cannot be obtained; (b) an explanation as to the efforts that were made to obtain those records; (c) a description of any further action to be taken by VA with respect to the claim; and (d) notice that the Veteran is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). 3. Then, schedule the Veteran for an examination with an appropriate clinician to determine whether any current back disability is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all back disabilities currently found. For each back disability identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the back disability is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected foot and ankle disabilities. Specifically, the examiner is asked to address whether the Veteran has an altered gait as a result of his service-connected foot and ankle disabilities and if this altered gait has caused or aggravated any current back disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the back disability prior to aggravation by the service-connected disabilities. Please note, causation and aggravation are separate concepts and must be addressed independently. In providing the above opinions, the examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Schedule the Veteran for an examination with an appropriate clinician to determine whether any current sciatic nerve disability affecting the right and left lower extremities is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all sciatic nerve disabilities currently found. For each sciatic nerve disability identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the sciatic nerve disability is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected foot and ankle disabilities. Specifically, the examiner is asked to address if the Veteran has an altered gait that is caused by his service-connected foot and ankle disabilities and, if so, if the altered gait has caused or aggravated any current sciatic nerve disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the sciatic nerve disability prior to aggravation by the service-connected disabilities. Please note, causation and aggravation are separate concepts and must be addressed independently. In providing the above opinions, the examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Schedule the Veteran for an examination with an appropriate clinician to determine whether any current right hip disability is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all right hip disabilities currently found. For each right hip disability identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the right hip disability is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected foot and ankle disabilities. Specifically, the examiner is asked to address whether the Veteran has an altered gait as a result of his service-connected foot and ankle disabilities and, if so, whether this altered gait has caused or aggravated a right hip disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the right hip disability prior to aggravation by the service-connected disabilities. Please note, causation and aggravation are separate concepts and must be addressed independently. In providing the above opinions, the examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 6. Schedule the Veteran for an examination with an appropriate clinician to determine whether any current right knee disability is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all right knee disabilities currently found. For each right knee disability identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the right knee disability is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected foot and ankle disabilities. Specifically, the examiner is asked to address whether the Veteran has an altered gait that is caused by his service-connected ankle and foot disabilities and, if so, if this altered gait has caused or aggravated a right knee disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the right knee disability prior to aggravation by the service-connected disabilities. Please note, causation and aggravation are separate concepts and must be addressed independently. In providing the above opinions, the examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record, including the June 1994 progress notes in the Veteran’s service treatment records describing treatment for right knee pain. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 7. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected left and right ankle strain disabilities. 8. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected left foot disability. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel