Citation Nr: 22013152 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 20-19 766 DATE: March 8, 2022 REMANDED Entitlement to service connection for a left leg disability is remanded. REASONS FOR REMAND The Veteran honorably served in the United States Air Force from August 1966 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) from an appeal of an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was first adjudicated in August 1974, when it was classified as "service connection for stress on the upper leg" and denied. The Veteran did not appeal that decision and it became final. The matter was denied again in November 2002, when the RO found that new and material evidence had not been submitted and classified the claim as "service connection for residuals of removal of lipoma of the left buttock/thigh." In May 2006, the Board affirmed the denial on the grounds that new and material evidence had not been submitted. Finally, in the October 2018 rating decision, the RO found new and material evidence had been submitted but denied the claim. Unfortunately, a remand is required in order to afford the Veteran a VA examination and obtain an adequate medical opinion. 1. Entitlement to service connection for a left leg disability is remanded. The Veteran asserts his left leg disability is a result of a fall down a flight of steps incurred during basic training in 1966. See, e.g., November 2018 notice of disagreement. The Veteran has a diagnosis of left sciatica neuralgia, which manifests as pain and weakness in his left leg. See July 2018 treatment note. A remand is necessary to ascertain the nature and etiology of the Veteran's injury. The crux of this case is that the Veteran asserts the left leg disability is attributable to a fall in basic training, while the RO has concluded that the left leg disability is due to either a pre-service surgery to remove a lipoma, or alternatively, caused or aggravated by falls suffered after service in 1984 and 1988. It is undisputed that the Veteran had a lipoma removed from his left buttock/thigh in January 1966. See January 1966 hospital note. This was noted on his entrance physical in June 1966. See June 1966 report of medical examination. In September 1966, during basic training, the Veteran went to the emergency room where the treating physician took note of the Veteran's surgical scar and issued a provisional diagnosis of post-surgical neuroma. See September 1966 emergency room note. The Veteran asserts this visit to the emergency room was because he suffered a fall down a flight of steps, injuring his back and left leg. See, e.g., November 2018 notice of disagreement. Ultimately, the Veteran was discharged from service due to this disability. See September 1966 Medical Board report. The Veteran signed a report of medical history that stated he had not suffered an illness or injury since induction, and an application for discharge that stated he was being discharged for a physical disability which is considered to have existed prior to enlistment and which appears to be not incident to or aggravated by military service. See September 1966 report of medical history; September 1966 application for discharge. The Veteran has clarified that as very young man, he believed his superiors and the Air Force doctors who told him the pain he was experiencing was due to the pre-service surgery. See March 2003 letter from the Veteran. The RO has also raised an alternative theory based on evidence that the Veteran was injured on the job after military service. See November 2002 rating decision. There is evidence in the claims file that the Veteran suffered falls in 1984 and 1988 while working. See January 2001 workers' compensation paperwork, September 1984 workers' compensation paperwork. However, this theory does not fully explain the etiology of the Veteran's leg disability because the Veteran first filed a claim for his leg disability in 1974, some ten years prior to the first documented fall. See June 1974 claim. While it is possible the falls in 1984 and 1988 aggravated the disability, they do not provide an adequate explanation for the etiology of the disability. The Veteran was afforded a VA examination in regard to his related back claim in August 2006. This examination was performed by a physician who, while in private practice, was the Veteran's private physician. See August 2006 VA examination. That examination diagnosed the Veteran with scoliosis of the lumbar spine and chronic back strain with radicular symptoms into the left leg, L5-S1. See id. However, that examiner did not opine on the etiology of the Veteran's injury. See id. VA obtained an addendum opinion in May 2007, which provided a positive nexus to service and attributed the Veteran's left leg disability to the fall he suffered in 1966. See May 2007 VA addendum opinion. That examiner also opined that the Veteran's current disability is not due to his lipoma and the lipoma resection. See id. In a prior decision for the Veteran's back condition, the Board has discounted this May 2007 opinion because it relies upon the self-reported history of the Veteran, and the contemporaneous medical evidence does not document a fall during basic training. See January 2008 Board decision. However, the Board also notes that there is no medical opinion in the file that states the Veteran's disability either clearly and unmistakably pre-existed service, or that the evidence indicates that the Veteran's lipoma and subsequent surgery is the cause of his current disability. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). For this reason, a remand is required in order to afford the Veteran a new examination and obtain a medical opinion that applies the proper standard and opines on the etiology of the Veteran's current disability. The Board also takes note that in support of his claim, the Veteran has submitted both lay and medical evidence. For example, the Veteran has submitted medical opinions that his in-service fall is the cause of his back and leg injury, and that a lipoma (or its removal) would not cause the kind of disability the Veteran is experiencing today. See, e.g., July 2018 independent medical opinion from D.N., D.C.; May 2006 medical opinion from W.C.B., M.D.. The Veteran has also submitted lay statements from other Veterans who were in basic training with him, and who remember hearing about his fall. See, e.g., July 2004 buddy statement from J.L.B.. The Veteran has further submitted statements from coworkers - after service but prior to his 1984 fall - that document observing the Veteran's left leg pain and being told of his 1966 fall. See, e.g., April 2003 buddy statement from W.C.. On remand, the VA examiner should consider both the prior medical opinions and the Veteran's submitted lay testimony. The matters are REMANDED for the following action: 1. The Decision Review Operations Center (DROC) should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The DROC should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. Schedule the Veteran for a VA examination, if and when he can attend one, for his leg disability. The examiner must review the claims file, including this remand. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: a. Is the Veteran's leg disability at least as likely as not (an approximate balance of positive and negative evidence) due to his pre-service January 1966 lipoma and/or lipoma removal surgery? b. Did the Veteran's leg disability clearly and unmistakably (undebatable) preexist the Veteran's service? c. If the examiner finds the Veteran's leg disability did clearly and unmistakably preexist service, was it clearly and unmistakably (undebatable) not aggravated by service? d. If not, is the Veteran's leg disability at least as likely as not (an approximate balance of positive and negative evidence) related to service, including due to a reported fall down a flight of steps in 1966? Provide a rationale to support the opinion(s). The examiner is asked to discuss the Veteran's submitted medical opinions regarding the etiology of his leg disability. See, e.g., July 2018 independent medical opinion from D.N., D.C.; May 2006 medical opinion from W.C.B., M.D.. The examiner should also consider the lay testimony and buddy statements submitted by the Veteran. See, e.g., April 2003 buddy statement from W.C.. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maisel, S. Alexander 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.