Citation Nr: 21029881 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-63 351 DATE: May 17, 2021 REMANDED Entitlement to service connection for a bilateral leg disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from October 1951 to January 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona. This case was previously before the Board in June 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. The Board notes that the Veteran's service treatment records are missing. In such situations, VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The caselaw does not lower the legal standard for proving a claim for service connection in such a situation, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). In addition, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (wherein the United States Court of Appeals for Veterans Claims (Court) declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim and to afford him every possible consideration. Entitlement to service connection for a bilateral leg disability is remanded. The Veteran contends, in essence, that he has a preexisting bilateral leg disability that was aggravated by service. Specifically, he claims that he broke his leg in 1945, and that marching in formation and the carrying of the military gear aggravated his preexisting right leg disability, and such strain caused him to overcompensate on his left leg, causing a left leg disability. VA has a duty to provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Under applicable law, a medical examination and/or opinion is deemed "necessary" if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period, provided the claimant has the required service or triggering event to qualify for that presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). The requirement of a current disability is satisfied when the claimant is shown to have the disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. Here, the Veteran's DD-214 indicates that he was discharged due to a disability that existed prior to entry on active service. Although service treatment records are unavailable, military personnel records suggest that the disability may have been internal derangement of the knee. The Veteran has self-reported that his bilateral leg disability in service has left him permanently disabled. Additionally, the Veteran submitted a Disability/Hearing Impaired Plate Application with the State of Arizona's Motor Vehicle Division, signed by a Dr. Steingard, indicating that he is permanently physically disabled. Although not an adequate basis for a grant of benefits, the lay observable conditions of his bilateral leg disability, the signed medical certification by Dr. Steingard indicating permanent physical disability, and the suggestion that such a disability "may be associated" with the disability associated with separation of service, triggers the duty to assist. As such, an examination is warranted. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in part, that an examination may be required under the provisions of 38 C.F.R. § 3.159(c)(4) if the record on appeal contains medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits). Because no such examination has been conducted, a remand is required. In the June 2018 remand, the Board asked the AOJ to obtain outstanding private treatment records from a Dr. P.S. In February 2019, the AOJ wrote the Veteran and asked that he complete and return an enclosed VA Form 21-4142 (Authorization to Disclose Information to the Department of Veterans Affairs) so that treatment records from Dr. P.S. could be obtained. He did not respond to the request. In April 2019, the AOJ furnished the appellant a supplemental statement of the case (SSOC) addressing the issue on appeal. In response, the Veteran issued a statement indicating that his private physician is not Dr. P.S. See April 2019 correspondence. As the Board is remanding the claim for other development, the Veteran can be afforded another opportunity to submit or authorize VA to obtain the private medical records in question. In that regard, he is advised that the failure to provide the above-requested information could negatively affect his claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (VA's duty to assist the Veteran is not a one-way street). This matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his bilateral leg disability, to include Dr. Steingard and/or Dr. P.S. Make two requests for authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination of his legs. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should provide opinions on the following: a. Identify any currently diagnosed leg disabilities, to include any disabilities of the knees. b. Opine as to whether the Veteran had a leg disability that clearly and unmistakably (i.e., undebatably) existed prior to his period of active service from October 1951 to January 1952, and if so, whether this is the same leg disability with which he is currently diagnosed. The examiner must specifically address the fact that the Veteran reported breaking his right leg prior to service and overcompensated on his left leg during service training. c. If the examiner determines that there is clear and unmistakable evidence that the Veteran had a leg disability that preexisted this period of service, opine as to whether there is clear and unmistakable evidence that the preexisting leg disability was NOT aggravated in service beyond the natural progression of the disease or disability. d. If there is no clear and unmistakable evidence that the Veteran had a leg disability that preexisted active duty service, and there is clear and unmistakable evidence that it was NOT aggravated in service, then opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the bilateral leg disability is otherwise related to service. (Continued on the next page) A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. John Kitlas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, Associate 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.