Citation Nr: 21005414 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-52 836 DATE: February 1, 2021 REMANDED Service connection for a left lower extremity (LLE) tibia stress fracture is remanded. Service connection for a right lower extremity (RLE) tibia stress fracture is remanded. REASONS FOR REMAND The Appellant served on active duty for training (ACDUTRA) in the National Guard from July 5, 1998, to August 19, 1998. The Appellant’s appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107(a); 38 C.F.R. § 20.900(c). These claims are on appeal from a September 2015 rating decision. They were first before the Board in May 2018 and were denied on the basis there were no diagnoses of a tibia stress fracture in either extremity. The Appellant appealed the denials to the Court of Appeals for Veterans Claims (Court) and in an October 2019 Memorandum Decision, the Court found the May 2018 Board decision did not contain an adequate reasons or bases and vacated and remanded the claims. Specifically, the Court concluded that the Board denied the Appellant’s claims on the basis that there were no diagnoses without addressing the United States Court of Appeals for the Federal Circuit’s recent decision in Saunders v. Wilkie. 886 F.3d 1356 (Fed. Cir. 2018) (holding that the requirement of evidence of a current disability can be met with sufficient evidence that amounts to a functional impairment). In April 2020, the Board remanded the Appellant’s claims for examinations and opinions consistent with the above instructions from the Court, which were obtained in August 2020. Although the Board regrets the further delay, an additional remand is required for further development to fairly and properly adjudicate the Appellant’s claims. 1. Service connection for a LLE tibia stress fracture is remanded 2. Service connection for a RLE tibia stress fracture is remanded Initially, the Board finds further development is required to attempt to obtain the Appellant’s outstanding service treatment records. While the Appellant’s claim was initially being developed at the Agency of Original Jurisdiction (AOJ), attempts were made to obtain her service treatment records from the Records Management Center, National Personnel Records Center, and Army Medical Department. The AOJ received negative responses from those repositories in March, April, and June 2015, respectively. Notably, the Appellant’s service was in the Mississippi National Guard; typically, National Guard records are stored with the appropriate state’s Adjutant General. There is no indication that the AOJ has contacted the Mississippi Adjutant General to attempt to obtain the Appellant’s outstanding records or explained why a request to that source would not be appropriate. Moreover, no requests to the Appellant’s specific National Guard units have been made. On remand, the AOJ should contact all appropriate potentially relevant records repositories (or explain why contacting a specific repository would be inappropriate in the instant case) to attempt to obtain the Appellant’s outstanding service treatment records from her National Guard service. These requests must be made with the Appellant’s maiden name, as listed on her DD-214. Next, the Board has considered the August 2020 opinions obtained in connection with the April 2020 Board remand and the Court’s October 2019 Memorandum Decision. Given that the Appellant’s outstanding service treatment records may provide additional information to assist in substantiating her claims, new opinions are required. Regardless of whether Appellant’s service treatment records are located, the Board still finds new opinions are required. The August 2020 examiner’s opinion is based on a lack of chronicity of care and treatment and impermissibly ignored the Appellant’s lay statements regarding the symptoms she has experienced since service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Moreover, the April 2020 Board remand directives specifically instructed the examiner to “explain whether there is any medical reason to accept or reject the appellant’s belief that any current disability of the right and/or left lower extremity is related to the incidents described during her [Advanced Individual Training] in 1998 including whether the appellant would have been capable of completing a 2 mile run in 20 minutes and 6 seconds with stress fractures of the right and/or left tibia.” The August 2020 examiner did not provide this explanation as required by the Board’s remand directives. Further, based on the Appellant’s statements and medical evidence submitted in support of her claim, the Board finds it is appropriate to broaden her claims under Clemons v. Shinseki. 23 Vet. App. 1, 4-5 (2009) (holding that a claim should not be limited to the disorder as characterized by the claimant but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). While the Appellant’s December 2014 claim form lists her claimed disabilities as bilateral tibia stress fractures, several of her statements suggest she is also claiming a bilateral foot disorder. In a November 2015 statement, the Appellant stated that prior to service she had no problems with her legs and feet but that after basic training she began to experiencing tingling in her big toes and during two mile runs she experienced leg pain. In support of her claim, she submitted a July 11, 1998, diary entry which indicates she injured her left foot while on a run. She has also submitted private treatment records dated in 2014 which contain the following diagnoses pertaining to the feet: bilateral bunions; onychocryptosis of the right hallux tibia and fibula sides; bilateral hallux valgus deformity, worse on the right; and paronychia of the right hallux. Thus, the Board finds that the claim for bilateral tibia stress fracture must also encompass a claim for a bilateral foot disorder. See Clemons, 23 Vet. App. at 4-5. Given that the Appellant has not been provided with an examination to determine whether any currently diagnosed feet disorders are related to injuries incurred during ACDUTRA, this must be accomplished on remand. Finally, the Board wishes to note that in its April 2020 remand, the Appellant was advised that she only submitted portions of her private medical records, which reference earlier treatment. In this regard, an April 2014 private record reflects the Appellant underwent surgery on her right foot “many years ago.” In September 2020, the AOJ sent the Appellant a letter requesting that she complete and return a medical authorization(s) to obtain all outstanding private records and again informed her that she only submitted portions of her private medical records, which referenced earlier treatment. The Appellant has not responded to that letter and it was not returned as undeliverable. Unfortunately, the Appellant’s lack of response has resulted in VA’s inability to obtain crucial evidence which may lend support to her claims. In this regard, the Board notes that VA’s duty to assist is not a one-way street; if a claimant wishes help, she cannot passively wait for it in circumstances where her own actions are essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board emphasizes to the Appellant and her representative that they have the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Complete all appropriate steps to obtain the Appellant’s outstanding service treatment records from her National Guard service, to include, but not necessarily limited to: (a) the Mississippi Adjutant General; (b) her specific National Guard unit. These requests should be made with the Appellant’s maiden name, as listed on her DD-214. If the AOJ determines that contacting one of the above identified records repositories is not appropriate, an explanation for this must be provided. All efforts to obtain these records must be documented in writing. If it is determined these records are still unavailable or that further attempts to obtain them would be futile, prepare a Formal Finding of Unavailability outlining all the steps taken to attempt to obtain these records and associate it with the claims file. The Appellant and her representative must also be notified of the same in accordance with VA regulation. 2. Following completion of steps 1 and 2, obtain addendum opinions from, if possible, the examiner who performed the August 2020 examinations. If this examiner is unavailable, another medical professional may provide the requested opinions. A new examination of the Appellant is only required if the medical professional designated to provide the opinions finds one is necessary. The medical professional designated to provide the opinions must obtain from the Appellant and records in the examination report a complete history regarding the onset and continuity of symptoms; this may be accomplished using the ACE telephone process. Following a complete review of the evidence of record, and with consideration of the Appellant’s statements, please provide the following: (a) Determine whether it is at least as likely as not (50 percent probability or higher) that the Appellant’s current LLE symptoms began/were incurred during the performance of ACDUTRA. Why or why not? (b) Determine whether it is at least as likely as not (50 percent probability or higher) that the Appellant’s current RLE symptoms began/were incurred during the performance of ACDUTRA. Why or why not? (c) Explain whether there is any medical reason to accept or reject the Appellant’s belief that any current disability of the right and/or left lower extremity is related to the incidents described during her Advanced Individual Training in 1998 including whether the she would have been capable of completing a 2 mile run in 20 minutes and 6 seconds with stress fractures of the right and/or left tibia. Why or why not? A complete rationale for each opinion is required. Citation to accepted medical literature/principles would be of great assistance to the Board. If the examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. The examiner must explain whether the inability to provide a definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. If the inability to provide any opinion is due to lack of medical knowledge on the part of the examiner, rather than lack of knowledge in the medical community as a whole, another medical professional must provide the opinion. 3. Following completion of steps 1 and 2, afford the Appellant the appropriate examination to determine the etiology of any foot disorders found. The examiner must obtain from the Appellant and record in the examination report a complete history regarding the onset and continuity of symptoms. Following a review of the record of the evidence of record and with consideration of the Appellant’s statements, the examiner is requested to provide the following information: (a) Identify all foot disabilities found on examination. If any prior diagnoses have resolved (see private treatment records dated 2014), please state so. (b) With regard to each diagnosis in (a), even if it has resolved, determine whether it is at least as likely as not (50 percent probability or higher) that the disability began during or is etiologically related to the Appellant’s reported injuries during ACDUTRA service (July – August 1998). Why or why not? (c) Even if there are no foot diagnoses on examination, determine whether it is at least as likely as not (50 percent probability or higher) that the Appellant’s foot pain is etiologically related to injuries incurred during ACDUTRA. Why or why not? (Continued on the next page)   A complete rationale for each opinion is required. Citation to accepted medical literature/principles would be of great assistance to the Board. The examiner must explain whether the inability to provide a definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. If the inability to provide any opinion is due to lack of medical knowledge on the part of the examiner, rather than lack of knowledge in the medical community as a whole, another medical professional must provide the opinion. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.