Citation Nr: 21042031 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 20-29 602 DATE: July 11, 2021 REMANDED The petition to reopen the claim of service connection for a neck disability with permanent nerve damage and difficulty with hands and legs is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for bilateral leg artery disease is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a respiratory disability, to include emphysema, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1968 to December 1969, with service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for emphysema to encompass any respiratory disability. The Board notes that a July 1970 rating decision initially granted service connection for right calf shell fragment wound scars. A January 2019 rating decision determined there was a clear and unmistakable error in the diagnosis and changed the grant of service connection to LEFT calf shell fragment wound. However, the Veteran has stated that he has scars on both legs from shrapnel during service and has indicated that he requested service connection for both right and left leg disabilities. See October 2018 claim; February 2019 notice of disagreement (NOD); and May 2020 statement in support of claim. With respect to all pro se pleadings, VA must give a sympathetic reading to the Veteran's filings. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Accordingly, the Board finds that the Veteran filed a claim of service connection for a right leg disability as stated on the title page. In his February 2019 NOD, the Veteran stated that both legs have nerve damage and that the VA doctor "could have made error." It is unclear if the Veteran is attempting to file a claim under 38 U.S.C. § 1151 (disability as the result of, essentially, VA's carelessness, negligence, lack of proper skill or error in judgment). The Agency of Original Jurisdiction (AOJ) did not develop or adjudicate this issue and the Board does not have jurisdiction to address these contentions. The Veteran is advised that he may file an § 1151 claim related to his leg disabilities if he so wishes. The Board also notes that the Veteran is currently unrepresented but has indicated an interest in possibly appointing representation. If he wishes to have representation, he should submit a valid Form 21-22 or 21-22a, as applicable. 1. The petition to reopen a claim of service connection for a neck disability with permanent nerve damage and difficulty with hands and legs is remanded. 2. Entitlement to service connection for a left ankle disability is remanded. 3. Entitlement to service connection for a left foot disability is remanded. 4. Entitlement to service connection for a left leg disability is remanded. 5. Entitlement to service connection for a right leg disability is remanded. 6. Entitlement to service connection for bilateral leg artery disease is remanded. 7. Entitlement to service connection for a back disability is remanded. 8. Entitlement to service connection for a respiratory disability, to include emphysema, is remanded. The record reflects that the Veteran applied for Social Security Administration (SSA) disability benefits. See February 2007 SSA Inquiry printout. Because his SSA records may reasonably contain information relating to the issues on appeal, remand is required to obtain them. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The medical evidence associated with the record appears to be incomplete. Although the Veteran reported receiving VA treatment numerous times, to date, no VA treatment records (other than a one-page record from February 1970 when scrub typhus was diagnosed) have been added to the claim file. As VA treatment records are constructively of record, they must be obtained. Additionally, some, but not all, of the records from the Veteran's identified private providers have been obtained. Specifically, he identified records from Baylor Hospital, Methodist Hospital, and Dr. Seynkoukia. The record also reflects that he submitted records from Dr. P.S.; these do not appear to be the complete records from this provider. As private treatment records are likely to contain pertinent information related to the Veteran's claim, they should be obtained. With respect to the Veteran's claim of service connection for a respiratory disability, the Board finds that a VA examination with causation opinion is required based on his presumed exposure to herbicide agents while serving in Vietnam. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the Veteran's claim of service connection for a left leg disability, the Board finds the December 2018 VA examination inadequate as the examiner did not provide rationale for the negative opinions he gave. The Board also finds that a VA examination is required with respect to his claim of service connection for a right leg disability. Id. The matters are REMANDED for the following action: 1. Provide the Veteran with an opportunity to submit a VA Form 21-22/21-22a, Appointment of Veterans Service Organization/Appointment of Individual as Claimant's Representative. Allow a reasonable time for response, and associate any forthcoming response with the claim file. 2. Request directly from the SSA relevant records, including determinations and medical records, regarding any claim for disability benefits. All attempts to fulfill this development should be documented in the claim file. If the records are unavailable, it should so be noted in the record and the reason for unavailability should be provided. 3. Ask the Veteran to identify the provider(s) of all evaluations and treatment he has received for the disabilities on appeal since his discharge from service (records of which are not already associated with the claim file or established to be unavailable), and to provide all releases necessary for VA to obtain the complete clinical records of all such treatment or evaluation, to specifically include records from Baylor Hospital, Methodist Hospital, Dr. Seynkoukia, and Dr. P.S. He should also be requested to specifically identify when the disabilities on appeal were first diagnosed and the diagnosing physician and/or facility. With his cooperation (by providing releases), the AOJ should obtain for the record complete clinical records of all such evaluations and treatment. If any private records identified are not received pursuant to the AOJ's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. 4. Obtain copies of the Veteran's VA treatment records, to specifically include records from his February 1970 hospital admission at Dallas VA Hospital. Notify the Veteran, in accordance with 38 C.F.R. § 3.159(e), if it is determined that the records are unavailable. 5. After the development above is completed, arrange for a VA examination (to include tele-health interview if necessary) of the Veteran to determine the nature and likely cause of any respiratory disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Identify, by diagnosis, all respiratory disabilities, to include emphysema, present during the appeal period (from July 2018). (b) For each respiratory disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service, to include conceded exposure to herbicide agents? Please explain why. (c) Is it at least as likely as not (50% or greater probability) that such disability is caused or aggravated by, or a residual of, scrub typhus which the Veteran was diagnosed with a few days following his separation from service? The examiner may not rely solely on the absence of medical evidence during or immediately after service in providing a negative opinion. 6. After the development above in #1-4 is completed, arrange for a VA examination (to include tele-health interview if necessary) of the Veteran to determine the nature and likely cause of any right and left leg disabilities. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Identify, by diagnosis, all right and left leg disabilities present during the appeal period (from July 2018). (b) For each right and left leg disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service, to include the shrapnel wound(s) he suffered in service? Please explain why. The examiner may not rely solely on the absence of medical evidence during or immediately after service in providing a negative opinion. 7. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.