Citation Nr: 1818294 Decision Date: 03/26/18 Archive Date: 04/04/18 DOCKET NO. 11-16 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right leg disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left leg disability. 3. Entitlement to service connection for a right leg disability. 4. Entitlement to service connection for a left leg disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1986 to October 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Fargo, North Dakota Regional Office (RO) of the Department of Veterans Affairs (VA) that declined to reopen a claim for entitlement to service connection for joint pain because the evidence submitted was not new and material. In a December 2011 deferred rating decision, the RO recharacterized the Veteran's claim as that of entitlement to service connection for the residuals of a bilateral knee injury. In August 2017, a VA examination was conducted and, in an October 2017 supplementary statement of the case, the RO implicitly reopened the Veteran's claim, recharacterized it as a right knee condition, and denied it on the merits. Under Clemons v. Shinseki, 23 Vet. App. 1 (2009), VA must liberally interpret a veteran's characterization of his disability when a broad interpretation is more favorable to the veteran. In this case, although this claim was recently recharacterized by the RO as a right knee condition, the evidence of record demonstrates that the Veteran has complained of pain in both the left and right leg, and that the pain in either leg may have been caused by a separate in-service injury. Accordingly, consistent with Clemons, the Board has recharacterized the Veteran's condition as two separate issues as reflected on the title page. See Clemons, 23 Vet. App. 1. The Veteran attended an informal conference with a Decision Review Officer in Fargo, North Dakota, in September 2011. He also testified before the undersigned Veteran's Law Judge during a November 2011 hearing. An informal conference report and a hearing transcript are of record. The Board notes that in written statements, dated September 2011 and January 2013, the Veteran requested to withdraw his claims for entitlement to service connection for malignant skin neoplasms (claimed as erythema nodosum), chronic bronchitis (claimed as shortness of breath), hiatal hernia (claimed as gastroesophageal reflux disease), and hypertensive vascular disease (claimed as high blood pressure and hypertension), as well as his claim for a total disability rating based on unemployability. A veteran or his authorized representative may withdraw any or all issues involved in an appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Accordingly, the Board does not have jurisdiction to review these claims and they are, therefore, dismissed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets the additional delay, this claim must be remanded to obtain an adequate VA examination. VA's duty to assist includes obtaining a medical examination or opinion when it is necessary to make a decision on a claim. See 38 U.S.C. § 5103A(d) (2012). When VA undertakes to provide an examination or opinion, it must ensure that it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this regard, a medical opinion is probative if it is factually accurate and contains fully articulated, sound reasoning. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). It is not adequate if it contains an incomplete analysis. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Concerning the Veteran's right leg, the Veteran was afforded a VA examination in August 2017, but it is inadequate to decide the claim because the examination report is incomplete and internally inconsistent. Although the examiner determined that the Veteran's right knee condition was less likely than not related to service, she did not actually provide a diagnosis for the Veteran's right knee. Rather, under "claimed conditions that pertain to this Disability Benefits Questionnaire," the examiner listed only "knee," and when prompted to select the diagnosis associated with the claimed condition, the examination report reads "no response provided." If the examiner found that the Veteran did not currently suffer from a disability in his right knee, she should have so stated, rendering a nexus opinion unnecessary. However, since a nexus opinion was provided, the examiner's analysis is incomplete because it is unclear what symptoms or conditions were considered as unrelated to service. In this regard, the record shows that the Veteran is currently diagnosed with non-service-connected erythema nodosum, which is repeatedly cited in his treatment records as causing pain and discomfort in his legs; and, in 2003, the Veteran's family doctor opined that the Veteran's bilateral knee pain was due to chondromalacia. Although, in August 2017, the VA examiner noted that the Veteran's claims file was reviewed in conjunction with her examination of the Veteran, she made no mention of either of these diagnoses in rendering her negative nexus opinion. See Nieves-Rodriguez, 22 Vet. App. at 304 (It is the reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion). Without a diagnosis or an explanation for the lack thereof, the Board finds that the August 2017 VA examination is incomplete and, as such, it is inadequate to decide the claim. With regard to the Veteran's claim for service connection for a left leg disability, a remand is required because the Veteran has not been afforded a VA examination. Although the Veteran's left knee was examined during the August 2017 VA examination, the examiner was only asked to consider whether any right knee condition was related to service. Yet, the Veteran has reported that he sustained an injury to his left knee during service when a ladder fell on legs. VA must provide an examination where there is: (a) competent evidence of a current disability, (b) evidence of an in-service injury, disease or event, (c) an indication that the disability may be associated with service, and (d) insufficient competent medical evidence on file to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding that a disability may be associated with service is low. McLendon, 20 Vet. App. at 83. Here, it is indicated in the Veteran's treatment records and lay statements that he currently suffers from a left leg disability and that he experienced an injury to his legs in service, but it is unclear what is his current diagnosis and if that diagnosis is related to service. A VA examination is required to clarify these issues before a decision can be made on this claim. Finally, the Board notes that, at his November 2017 hearing, the Veteran indicated that he would submit authorization forms within 60 days to allow VA to collect new treatment records from two private physicians, Dr. Richardson and Dr. Al-Obosi. A review of the claims file indicates that these authorization forms were never received. On remand, the Veteran should be given another opportunity to provide them. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to obtain any outstanding private or VA treatment records relevant to his claims on appeal, including records from Dr. Richardson and Dr. Al-Obosi, and associate them with the claims file. 2. After obtaining all outstanding records, schedule the Veteran for an examination with a qualified VA examiner to clarify the nature and etiology of any current left or right leg disabilities. The claims file, including a copy of this Remand, must be made available to and reviewed by the examiner and such review must be noted in the examination report. For any right or left leg disability identified, the examiner should opine whether it is at least as likely as not (50 percent or greater possibility) that the leg disability is caused by or otherwise related to service, to include an incident in 1986 when the Veteran slipped and fell during his time in boot camp and an incident in which a ladder fell on the Veteran's legs during active duty. A detailed rationale for all opinions expressed should be provided. 3. To help avoid future remand, the AOJ should ensure that all requested actions have been accomplished (to the extent possible) in compliance with this Remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should readjudicate the claims. If any benefit sought in connection with the remanded claims is denied, the AOJ must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). This claim 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. _________________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board 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).