Citation Nr: 18100697 Decision Date: 04/19/18 Archive Date: 04/19/18 DOCKET NO. 13-23 387 DATE: April 19, 2018 ISSUES DECIDED: 0 ISSUES REMANDED: 5 REMANDED ISSUES The Veteran had honorable active duty service with the United States Army from October 1965 to September 1967, followed by service in the Army Reserve. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, denying all of the claims currently on appeal. In April 2015, the Board issued a decision which denied service connection for hypertension and remanded all of the other claimed disabilities currently on appeal for further evidentiary development. In June 2015, the Veteran appealed the Board’s decision of entitlement to service connection for hypertension to the United States Court of Appeals for Veterans Claims (Court). In September 2016, the Court issued a Memorandum Decision, which vacated the portion of the Board’s decision that denied entitlement to service connection for hypertension, and remanded the matter for further consideration and instructions consistent with the Court’s Memorandum Decision. The Board notes that the Veteran presented testimony before a Veterans Law Judge in November 2014. The Veterans Law Judge who conducted the hearing is no longer employed by the Board. In February 2018, a letter was sent to the Veteran, which offered him the opportunity to elect to appear again for a new Board hearing. The Veteran was provided 30 days from the date of the letter to make his election. Absent any indication of a desire for a new hearing from the Veteran, the Board will proceed with adjudicating the claims. In March 2018, VA received correspondence from the Veteran indicating that he did not wish to appear at another Board hearing. Thus, the Board will proceed with adjudicating the Veteran’s claims. The Board further notes that prior to his current representation, the Veteran was represented by The American Legion. VA received a signed VA Form 21-22 in May 2017, changing representation from The American Legion to Attorney Christopher J. Tyson. The issue of entitlement to service connection for a bilateral foot disability, to include osteoarthritis, pes cavus, and gout, is remanded. The issue of entitlement to service connection for a left shoulder disability, to include arthritis, is remanded. The issue of entitlement to service connection for a right shoulder disability, to include arthritis, is remanded. The issue of entitlement to service connection for a back disability, to include lumbar intervertebral disc displacement and arthritis, is remanded. The issue of entitlement to service connection for hypertension is also remanded for additional development. Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The basis of the Court’s remand for the service connection claim for hypertension, as set out in the September 2016 Memorandum Decision, was that VA had not obtained all of the Veteran’s medical records, specifically private treatment records. In addition, the Court instructed the Board to determine whether any records existed for the Veteran’s period of Reserve service. The Board notes that during the course of the appeal, the Veteran has submitted a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), for medical records from the Philadelphia VA Medical Center (VAMC), the Hospital of the U. of P., as well as records from private physicians with the initials of M.S., D.F., and D.M. A review of the claims file reveals that since the September 2016 Memorandum Decision, VA has obtained outstanding medical records from the Philadelphia VAMC, the Hospital of the U. of P., and a portion of the records from Dr. D.F. With regard to the private medical records of Dr. M.S., in August 2016, the RO sent the private physician a medical record request. No response was received from Dr. M.S. The record reflects that the Veteran, through his representative, also submitted a request for medical records with Dr. M.S. in April 2017. As indicated in the December 2017 brief, the Veteran’s representative noted that medical records with Dr. M.S. had been destroyed. While a response has not been received from Dr. M.S. for the August 2016 request, an additional request would be futile, as the Veteran’s representative has indicated that the records sought do not exist. Similarly, with regard to the private medical records of Dr. D.F., in the December 2017 brief, the Veteran’s representative indicated that records prior to April 29, 2014, had been destroyed; thus, as VA received the available records from Dr. D.F. in July 2017, which were also provided by the Veteran in the December 2017 brief, the Board finds that VA is in possession of all available records from Dr. D.F., and therefore need not make further efforts to obtain private medical records from Dr. D.F. With regard to the private medical records of Dr. D. M., the record reflects that the RO sent Dr. D.M. a medical record request in July 2017 and in August 2017. To date, no response has been received from Dr. D.M. for either request. As the RO has made two attempts with obtaining private medical records from Dr. D.M., the Board finds that VA has made reasonable efforts to obtain these records. 38 C.F.R. § 3.159(c)(1). Thus, further efforts need not be made to obtain private medical records from Dr. D.M. Turning to the Veteran’s service records from his period of Reserve service, in May 2017, VA received correspondence from the Veteran, through his representative, indicating that a request for the Veteran’s Reserve records had been made with the National Personnel Records Center (NPRC). In response, the NPRC indicated that it was not in possession of the Veteran’s service records from his period of Reserve service. In the December 2017 brief, the Veteran’s representative indicated that he had been informed that any medical records from the Veteran’s period of service in the Reserves from 1967 to 1971 would have been sent to the NPRC. Thus, as stated by the Veteran’s representative, any Reserve medical records for the Veteran appear to have been either lost or destroyed. See December 2017 appellant brief at pages 4-5. Therefore, any additional efforts to obtain the Veteran’s records from his Reserve service would be futile, as, based on the foregoing, the records sought do not exist. As such, further efforts need not be made to obtain the Veteran’s records from his period of service in the Reserves. Therefore, based on the foregoing, the record reflects that all available outstanding records as referenced in the September 2016 Memorandum Decision have been obtained and associated with the Veteran’s claims file. With regard to the claim for service connection for hypertension, the most recent supplemental statement of the case was issued in June 2014. Therefore, the new medical evidence that has been associated with the claims file, including the evidence submitted by the Veteran in the December 2017 brief, has not been reviewed by the Agency of Original Jurisdiction (AOJ). The Board notes that the waiver of AOJ consideration did not accompany the Veteran’s submission of new evidence in December 2017. The Board further notes that since the Veteran’s Form 9 was received after February 2, 2013, a waiver of review by the AOJ was not required. See § 501, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or the claimant’s representative requests in writing that the AOJ initially review such evidence). However, in correspondence received in May 2017, the Veteran’s representative requested that VA adjudicate all of the Veteran’s claims, including the service connection claim for hypertension, once outstanding medical records were associated with the claims file. Accordingly, pursuant to the Veteran’s request, the service connection claim for hypertension must be remanded in order for the AOJ to review any new evidence associated with the claims file in the first instance. Similarly, with regard to the service connection claims for a bilateral foot disability, a bilateral shoulder condition, and a back disability, the record reflects that the most recent statement of the case was issued in June 2015, prior to the new evidence as referenced above being associated with the Veteran’s claims file. As the new evidence, specifically the medical records submitted in December 2017 by the Veteran, includes treatment pertaining to all of the claimed disabilities on appeal, the service connection claims for a bilateral foot disability, a bilateral shoulder condition, and a back disability must also be remanded in order for the AOJ to review the new evidence in the first instance. Further, the record reflects that the Veteran was provided VA examinations for his claimed bilateral shoulder condition and his back disability in June 2015. While the Veteran was afforded a VA examination for these disabilities, because the VA medical opinions associated with these examinations did not consider the new medical records associated with the Veteran’s claims file after the examinations, including the medical records submitted by the Veteran in December 2017, the opinions were therefore based on incomplete medical records; thus, the opinions are of limited probative value. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of a veteran’s claims folder). Therefore, on remand, addendum medical opinions to the June 2015 VA examinations of the shoulders and back in consideration of all of the pertinent medical evidence of record must be obtained. Finally, the Veteran has consistently and unvaryingly asserted that he is entitled to service connection for a bilateral foot condition and hypertension, as he believes that these disabilities had their onset in service. VA must provide a VA medical examination or obtain a nexus opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The record reflects that the Veteran has never been afforded a VA examination for either his claimed bilateral foot condition or his hypertension disability. With regard to the Veteran’s bilateral foot condition, in an August 2015 private medical record, a private physician with the initials of C.M. noted that the Veteran reported that his toes and bottom of his feet felt numb, and that he had difficulty with walking steadily. No opinion was provided as to the cause of the Veteran’s bilateral foot condition, specifically regarding whether the condition is related to the Veteran’s active service. On remand, such an opinion should be obtained. As to the Veteran’s claim for hypertension, the Board acknowledges that in the December 2017 brief, the Veteran’s representative specifically requested that the Veteran be provided a VA examination for this condition. In consideration of this request and in light of the new medical evidence submitted with regard to this claimed condition, as well as the Veteran’s continued assertion that his hypertension is related to service, the Board finds that the Veteran should also be afforded a VA examination for a formal evaluation of this condition. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, return the claims file to the VA examiner who conducted the June 2015 examinations for the shoulders and the back for addendum opinions. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the June 2015 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinions. The need for another examination for either claimed disability is left to the discretion of the medical professional offering the addendum opinions. The examiner is asked to furnish an opinion with respect to the following: (a) Identify all current shoulder disabilities associated with the Veteran. (b) Is it at least as likely as not that any identified shoulder disability manifested during, or as a result of, active military service? (c) Identify all current back disabilities associated with the Veteran. (d) Is it at least as likely as not that any identified back disability manifested during, or as a result of, active military service? In rendering the requested opinions, the examiner must consider all evidence of record, including all service treatment records, the Veteran’s statements regarding in-service injury associated with the shoulders, and all prior private examinations. The examiner should assume that the Veteran is a credible historian. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. The Veteran should be scheduled for a VA examination before an appropriate physician to determine the etiology of his claimed bilateral foot disability. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner is asked to perform all indicated tests and studies and provide an opinion as to the following: (a) Identify all current foot disabilities associated with the Veteran. (b) Is it at least as likely as not that any identified foot disability manifested during, or as a result of, active military service? In rendering the requested opinions, the examiner must consider all evidence of record, including all service treatment records, the Veteran’s statements regarding in-service injury associated with the shoulders, and all prior private examinations. The examiner should assume that the Veteran is a credible historian. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. The Veteran should also be scheduled for a VA examination before an appropriate physician to determine the etiology of his claimed hypertension disability. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner is asked to perform all indicated tests and studies and provide an opinion as to the following: (a) Identify all current disabilities related to hypertension associated with the Veteran. (b) Is it at least as likely as not that any identified elevated blood pressure disability manifested during, or as a result of, active military service? In rendering the requested opinions, the examiner must consider all evidence of record, including all service treatment records, the Veteran’s statements regarding in-service injury associated with the shoulders, and all prior private examinations. The examiner should assume that the Veteran is a credible historian. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. Ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND so as to help avoid future remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action must be undertaken. See Stegall v. West, 11 App. 268 (1998). 6. After completing all indicated development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. For each issue on appeal, the SSOC should consider any new evidence received since the last SSOC. The last SSOC for the issue of service connection for hypertension was issued in June 2014. The last SSOC for the issues of service connection for a bilateral foot condition, a bilateral shoulder condition, and a back disability was issued in June 2015. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel