Citation Nr: 1814907 Decision Date: 03/12/18 Archive Date: 03/19/18 DOCKET NO. 93-10 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a left leg disability. 2. Entitlement to an initial compensable disability rating for service-connected fibrocystic breast disease. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to July 10, 2007. REPRESENTATION Appellant (Veteran) represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL Veteran and her spouse ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from February 1980 to August 1980. She also had service in the National Guard, which included various periods of ACDUTRA and inactive duty for training. This case is before the Board of Veterans' Appeals (Board) on appeal from June 2008 and September 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In relevant part, the June 2008 rating decision denied the claim for a TDIU and a claim to reopen service connection for a left leg disorder (later reopened by the Board in November 2015). The September 2016 rating decision, in relevant part, granted service connection for fibrocystic breast disease, with a noncompensable rating assigned, effective from June 12, 2006. In May 2010, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the record. The case has been subject to multiple actions by the Board and the U.S. Court of Appeals for Veterans Claims (Court). Most recently, in April 2017, the Board remanded the claims on appeal for additional development. The case is again before the Board for appellate review. The record consists of electronic claims files and has been reviewed. Pertinent evidence has not been included in the record since issuance of the most recent Supplemental Statement of the Case (SSOC) dated in October 2017. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand of the claims on appeal is warranted for additional development. First, the Veteran should undergo VA examination into her service connection claim for a left leg disability. The record contains a June 2016 VA opinion stating that the Veteran does not have a left leg disability other than knee disability which has been service connected. However, as noted by the Veteran's representative, recent VA treatment records indicate problems with left leg shin splints and left leg length discrepancy with the right leg. An opinion should be provided regarding whether these disorders relate either to service or to service-connected bilateral knee disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Second, following the April 2017 remand, the Veteran provided a new VA Form 21-4142 indicating medical treatment for breast disease at the University of Michigan and at the Karmanos Cancer Institute. The record indicates that the RO requested information from each institution, and that medical records from the University of Michigan have been included in the record. However, the record indicates that, in June 2017, Karmanos informed VA that it had no information pertaining to the Veteran. A remand is warranted because the AOJ did not notify the Veteran of the negative response. See 38 C.F.R. § 3.159(e). Third, the TDIU claim must be remanded as it is inextricably intertwined with other issues remanded. See Smith v. Gober, 236 F.3d. 1370 (Fed. Cir. 2001). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include any outstanding VA treatment records, the most recent of which are dated in October 2017. All records/responses received must be associated with the claims file. 2. Notify the Veteran in compliance with 38 C.F.R. § 3.159(e) regarding efforts to obtain medical evidence from the Karmanos Cancer Institute. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of a left leg disorder other than service-connected knee disability. The examiner should review the claims folder, and then respond to the following questions. (a). Is it at least as likely as not (i.e., probability of 50 percent or higher) that a left leg disability is related to an in-service disease, event, or injury? In answering this question, please note the evidence of record documenting left leg disorders such as shin splints and a shortened left leg. (b). If the answer to (a) is negative, is it at least as likely as not that a left leg disability is proximately due to or the result of service-connected disability (e.g., knee disability)? (c). If the answers to (a) and (b) are negative, is it at least as likely as not that left leg disability is aggravated (i.e., worsened beyond the natural progress) by service-connected disability? If aggravation is found, the examiner should address the following medical issues: (i) the baseline manifestations of the disorder found prior to aggravation; and (ii) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. Fully explain any opinion or conclusion reached. 4. The claims should then be readjudicated. All evidence received since the October 2017 SSOC should be considered. If any benefit sought remains denied, the Veteran should be provided another SSOC. 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). (CONTINUED ON NEXT PAGE) 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. §§ 5109B, 7112 (2012). _________________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).