Citation Nr: 21041055 Decision Date: 07/08/21 Archive Date: 07/07/21 DOCKET NO. 16-12 503 DATE: July 8, 2021 ORDER Entitlement to service connection for bilateral leg and foot numbness is denied. REMANDED Entitlement to service connection for a lumbosacral spine disability is remanded. FINDING OF FACT The record evidence shows that the Veteran does not experience any current disability due to his claimed bilateral leg and foot numbness which is related to active service. CONCLUSION OF LAW The criteria for service connection for bilateral leg and foot numbness have not been met. 38 U.S.C. §§ 101(24), 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.1, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from June to August 1985 and from January 1989 to April 1990. He had additional U.S. Army Reserve service from April 1984 to January 1989. The Veteran appointed his current service representative to represent him before VA by submitting a signed VA Form 21-22 to the Agency of Original Jurisdiction (AOJ) in November 2013. A Travel Board hearing was held in March 2018 before a Veterans Law Judge and a copy of the hearing transcript has been added to the record. In November 2018, the Board denied the currently appealed claims. The Veteran, through an attorney, and VA's Office of General Counsel appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Remand (Joint Motion). The Court granted the Joint Motion in October 2019, vacating and remanding the Board's November 2018 decision. In March and August 2020, the Board remanded the currently appealed claims to the AOJ for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed the AOJ to obtain additional service treatment records for the Veteran and any records which may be available from the VA Regional Office in Denver, Colorado (Denver RO). The AOJ conducted extensive development efforts in order to attempt to obtain these records and documented its efforts in the claims file. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Following the Board's prior remands, the Denver RO notified the AOJ in December 2020 that it had no records for the Veteran. The National Personnel Records Center in St. Louis, Missouri ("NPRC"), notified VA in January 2021 that it had no records from the Veteran's service in the Texas Army National Guard (Texas ANG). The Texas ANG provided records to the AOJ later in January 2021. In cases where the Veteran's service treatment records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must provide an explanation to the appellant regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). Having reviewed the record evidence, to include specifically the AOJ's extensive efforts to obtain the Veteran's complete service treatment records, the Board finds that it is reasonably certain that all such available records have been obtained, additional records do not exist, and further efforts to attempt to obtain them would be futile. 1. Entitlement to service connection for bilateral leg and foot numbness The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for bilateral leg and foot numbness. He essentially contends that he incurred bilateral leg and foot numbness during active service and experienced continuous post-service disability. The record evidence does not support his assertions regarding the existence of current disability due to his claimed bilateral leg and foot numbness which is related to active service. It shows instead that he does not experience any current disability due to this claimed disability which could be attributed to active service. The Veteran's available service treatment records show that, at an enlistment physical examination in April 1984 when he entered on to Army National Guard (ANG) service, he denied all relevant pre-service medical history and clinical evaluation was normal. At a pre-enlistment physical examination in June 1988, prior to his entry on to active Army service in January 1989, clinical evaluation was normal except for mild asymptomatic pes planus which was not considered disabling. He reported a history of leg cramps which occurred after "hard exercise." At the time of a Medical Board evaluation in March 1990, prior to his discharge from Army service in April 1990, he reported a medical history of leg cramps. Clinical evaluation was normal. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for bilateral leg and foot numbness. It shows instead that the Veteran does not experience any current disability due to his claimed bilateral leg and foot numbness which could be attributed to active service. His post-service VA and private outpatient treatment records show ongoing complaints of and treatment for bilateral leg and foot numbness or pain. VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) in February 2016 documented moderate intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. No symptoms were noted in the right lower extremity. And no other neurologic abnormalities were found on physical examination. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced bilateral leg and foot numbness at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence other than the Veteran's unsupported lay assertions and Board hearing testimony demonstrating that he experiences current disability due to his claimed bilateral leg and foot numbness which is attributable to active service. The Veteran's reported bilateral leg and foot pain also does not result in functional impairment such that service connection is warranted even under the low threshold of Saunders. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (finding that service connection is warranted for complaints of pain which result in functional impairment). He otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for bilateral leg and foot numbness. In summary, the Board finds that service connection for bilateral leg and foot numbness is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a lumbosacral spine disability is remanded. The Veteran also contends that he incurred a lumbosacral spine disability during active service, specifically as a result of injuries sustained while attending a U.S. Army parachute school, and experienced continuous post-service disability. The Board recognizes that this claim has been remanded previously, most recently in August 2020. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). The record evidence shows that, following VA examination in February 2016, the VA examiner opined that it was less likely than not that the Veteran's lumbosacral spine disability is related to active service. The rationale for this opinion included the lack of records documenting complaints of or treatment for a lumbosacral spine disability. The Board again notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. Because the rationale for the February 2016 VA examiner's opinion violates the Court's decisions in Buchanan and Barr, the Board finds that this evidence is not probative on the issue of whether a lumbosacral spine disability is related to active service. Thus, the Board finds that, on remand, the AOJ should obtain another opinion as to this matter. The AOJ also should obtain the Veteran's updated treatment records. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Thereafter, forward the claims file to a clinician for an opinion concerning the nature and etiology of the Veteran's lumbosacral spine disability. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a lumbosacral spine disability is related to active service or any incident of service, to include injuries sustained while attending a U.S. Army parachute school. A rationale must be provided for any opinion(s) expressed. The clinician is advised that the Veteran contends that he injured his lumbosacral spine while attending a U.S. Army parachute school and doing parachute jumps during service. (Continued on the next page) 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.