Citation Nr: 19190844 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 14-20 837 DATE: December 3, 2019 REMANDED Entitlement to service connection for a left leg injury is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2004 to January 2006 and from June 2009 to September 2010. In February 2018, the Board remanded this case for additional development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a left leg injury is remanded. Although further delay is regrettable, the issue of entitlement to service connection for left leg injury must be remanded for further development. The Board notes that the service treatment records are incomplete. It is documented throughout the claims file that the Veteran was treated in 2005 at a hospital on the Talil Air Force Base for a Humvee rollover accident. However, the 2005 hospitalization record is not in the claims file. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider resolving reasonable doubt in favor of the Veteran where applicable. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). A January 2019 VA examiner opined that the Veteran’s symptoms were subjective only, an objective examination was normal, and there was no objective evidence of a chronic condition, therefore a relationship to service had not been established. The examiner was “unable to determine a diagnosis from the subjective evidence only without speculation” because: (1) there was no clear record of “a traumatic scar or muscle tissue depression or dent” on the separation examination; (2) there were “no sufficient records and evidence of continuous care treatments for the condition;” and (3) there was no way to resolve the issue of whether the current left leg scarring and posterior left calf horizontal depression were a result of the in-service Humvee accident or a result of active service without resorting to mere speculation. The Board notes that a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran has consistently asserted left leg numbness is associated with an accident in which a seven ton vehicle landed on his left leg and pinned his body under water for several minutes. The Veteran testified at the November 2016 Board hearing that the left leg numbness “goes in and out” a few times per week causing him to have “no feeling in [the] left leg from [the] hip…to [the] toes.” However, there is no evidence which shows that a complete examination of the sensorineural functions of the left lower extremity have been performed. The September 2011 VA examination shows that a neurologic examination of the right lower extremity was performed, but there are no results for the left lower extremity. In March 2011, a physician prescribed Gabapentin for left leg numbness and an electromyography (EMG) was ordered. A March 2011 medical record shows that the EMG was cancelled. The Board notes that there were no left leg sensory tests documented at the January 2019 VA examination. Where VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the January 2019 VA examination incomplete. The January 2019 VA examiner stated that there was no record of a scar, muscle tissue depression, or dent on the separation examination and there were no records to support continuity of care. The Board notes that a lack of contemporaneous evidence is not an absolute bar to service connection. The Veteran is competent to report observable symptoms such as a tissue depression on the calf area and its onset. Layno v. Brown, 6 Vet. App. 465 (1994). The examiner stated that it was not possible to tell if left leg scarring and posterior left calf horizontal depression are a result of the in-service Humvee accident or a result of active service. However, the Veteran has only reported that the indentation on the posterior lower left leg was a result of the in-service accident. A May 2012 urgent care note shows that the Veteran presented “with a superficial linear lac[eration] to [the] anterior distal shin” of the left leg after being struck with a metal object while working on a fence. The January 2019 VA examination report shows that the Veteran reported that the tissue depression at the calf muscle area of the left leg was associated with the in-service accident. The Board finds that in order to give the Veteran all due consideration, the Veteran should be provided an opportunity to report for another VA examination to ascertain the etiology and current severity of any left leg disability. The matter is REMANDED for the following action: 1. Request from the appropriate records repository any records from the hospital on the Talil Air Force Base for a Humvee rollover accident involving the Veteran in 2005. 2. After obtaining any necessary releases, obtain all relevant VA and private treatment records not already associated with the claims file. All attempts to locate records must be documented in the claims file. 3. Then, schedule the Veteran for a VA examination to include a neurological and muscle injury examination by an appropriate specialist to determine the nature and etiology of any left lower extremity disability. The examiner must review the claims file, and a complete history should be elicited directly from the Veteran. The examiner should note that review in the report. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose all left lower extremity disabilities found. As to any pertinent disability identified on examination, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any left lower extremity disability, to include any left leg neurologic disability, had its onset in service, was aggravated by service, or is otherwise related to any incident of service, or whether a left lower extremity neurologic or arthritic disability manifested within one year following separation from service. If it is determined that there is another likely etiology for the lower extremity disability, that should be stated. Any opinion expressed should be accompanied by a complete rationale. The examiner must consider the Veteran’s statements and all lay statements regarding onset in service and statements regarding the continuity of symptomatology. The examiner should discuss the significance of the service medical records showing a Humvee accident, and a May 2012 post-service urgent care report showing a laceration of the left lower leg. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.O., Attorney Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.