Citation Nr: 21000958 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-31 418 DATE: January 6, 2021 REMANDED Entitlement to service connection for a right leg disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty in the Navy from June 1956 to June 1960. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 Department of Veterans Affairs (VA) rating decision. In October 2015, a hearing before a Decision Review Officer was held in lieu of a Board hearing. A September 2017 Board decision reopened the claim of service connection for a right leg disability and remanded the case to the Regional Office (RO) for further development of the matter on the merits. In July 2019, the Board remanded the case to the RO again for further development of the claim. Entitlement to service connection for a right leg disability Unfortunately, there has not yet been substantial compliance with the Board’s previous remand directives, and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2019, the case was remanded in part to satisfy VA’s duties to notify the Veteran in relation to obtaining records. While the RO has undertaken efforts to obtain all post-service VA medical records, it has not informed the Veteran of its efforts to obtain the 1960 records from the San Diego U.S. Navy Hospital. A review of the file indicates that some inpatient records dated in June 1960 were received, none pertaining to treatment of a leg disability. (They show treatment for a wrist problem from June 8 to 15, after which the Veteran was declared fit for duty; there were no records found dated from June 17, when the Veteran claimed he was hospitalized for mental reasons and a leg disability, to June 21, when the Veteran was discharged from service.) The Veteran has not been apprised of the efforts to obtain the Naval hospital records, per 38 C.F.R. § 3.159(e). The July 2019 Board remand also ordered a VA examination of the Veteran to determine the likely etiology of all his right leg disability(ies). In August 2019, he was examined by the same nurse practitioner who previously examined him in March 2018, and as before the examination report is inadequate. She again diagnosed right knee strain, which does not explain the complaints of leg numbness, and not address January and July 2015 VA outpatient records noting a vascular condition/arterial insufficiency (as was requested). Her response to whether the current disability is related to the alleged fall on a ship in service is also problematic, in part because she appears to rely solely on the absence of documentary evidence of a leg injury in service and leg symptomatology for decades after service. Her rationale asserts that there is “no possible way” to determine if the right leg condition was related to service as “there are no evaluations or clinic notes of any kind” found in the service treatment records to show an injury was sustained. She stated her “opinion would be different” if there was “any” service medical record “showing even one complaint.” She further indicated that the Veteran was “probably telling the truth [regarding a right leg injury in service],” but that there were no service records reflecting such an injury and she was not willing to provide a favorable opinion without “objective evidence.” Given the insufficiency of this opinion, development for a new one is needed. The matter is REMANDED for the following action: 1. Notify the Veteran of the efforts that were undertaken to obtain the San Diego U.S. Navy Hospital records dated in 1960, to include the apparent inability to secure any June 1960 hospital records of treatment for a right leg disability. 2. Obtain an addendum opinion from an appropriate clinician other than March 2018 and August 2019 examiner of the Veteran regarding the likely etiology of his right leg disability. [If further examination is needed for an opinion sought, it should be arranged.] Regarding each diagnosed right leg (to include vascular) disability, the provider should opine whether it at least as likely as not (a 50 percent or greater probability) is etiologically related to the Veteran’s June 1956 to June 1960 military service including the claimed injury from a fall on a ship (alleged to have occurred on various dates in 1956, August to September 1958, and December 1957). If a disability is found to not be related to service, the provider should identify the etiology that is considered to be more likely (and explain why that is so). The provider should address: the Veteran’s statements and hearing testimony regarding a right leg injury from sliding under a metal ladder on deck during service, and his reports of leg numbness ever since (see, e.g., October 2011 VA outpatient record); 2001 and 2003 records from Health Centers of Northern New Mexico, which do not refer to lower extremity complaints; September 2012 and January 2013 VA outpatient records, noting a report of a right knee contusion from being struck by a car in July 2012; a September 2014 VA outpatient record, noting an assessment of lower extremity pain, most likely osteoarthritis; a January 2015 VA outpatient record, noting a report of a vascular condition since an injury on a military ship, with possible damaged blood vessels; a July 2015 VA outpatient record, noting complaints of lower leg pain and a diagnosis of arterial insufficiency; the March 2018 and August 2019 VA examination diagnosis of right knee strain that is unrelated to service; and any other medical record pertaining to the right leg. The provider should review the Veteran’s lay reports that he has had right leg problems since a leg injury in service and opine how the statements comport with generally accepted medical norms. (If a statement is rejected as not credible, there must be explanation why that is so (cite to clinical findings/medical principles that support that conclusion.) The absence of documentation during or after service cannot be the sole basis for rejecting a possible nexus to service; providing an [alternate] likely etiology, beyond an assertion that there was no documentation of the disability during service and for year after service, may overcome this. If an opinion sought cannot be given without resort to speculation, (to satisfy legal requirements) the consulting provider should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) or by a deficiency in the record or examiner (additional facts are required, or the provider does not have the requisite knowledge or training), in which case the further testing/specialist’s opinion/other information that is needed to provide the requested opinion should be identified. The provider must include rationale with all opinions, citing to relevant evidence, supporting factual data and medical literature, and prior medical opinions, as deemed appropriate. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, Counsel 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.