text:
Citation Nr: 1224000
Decision Date: 07/11/12    Archive Date: 07/18/12

DOCKET NO.  05-12 200	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Atlanta, Georgia

THE ISSUE

Entitlement to service connection for a lower back disability (back disability).

REPRESENTATION

Veteran represented by:	The American Legion

ATTORNEY FOR THE BOARD

Matthew Blackwelder, Counsel

INTRODUCTION

The Veteran had active military service from October 1981 to September 1984.

This appeal initially came to the Board of Veterans' Appeals (Board) from a July 2004 rating decision, which, in pertinent part, determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for a back disorder and denied an increased disability evaluation for the Veteran's right ankle tendonitis.  In November 2008, the Board determined that the Veteran had submitted a new and materail evidence and the reopened claim of entitlement to service connection for a chronic low back disorder to include sciatica; reframed that issue; and remanded the Veteran's appeal to the RO for additional action.

In September 2010, the Board remanded the Veteran's back claim once again to seek private treatment records.  These request was fully complied with, and, as such, there is no prejudice for the Board to proceed.  See Stegall v. West, 11 Vet. App. 268 (1998).

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence.

The Board notes that subsequent to the issuance of the supplemental statement of the case, dated in September 2011, a number of VA treatment records were added to the Veteran's Virtual VA file in December 2011.  Although this evidence was not accompanied by a waiver of RO review, a preliminary review finds that the additional evidence is neither relevant nor material to the basis for the Board's decision, as it does not address the etiology of the Veteran's current back disability.  The only potential relevance of the newly added records is that they document the fact that the Veteran currently has a lower back disability, but this fact is not in dispute, as it has been well-established by the treatment records and examination reports that were already of record.  Simply stated, the fact that the Veteran has a back disability at this time is not in dispute.  Therefore, this evidence is not "pertinent" as defined at 38 C.F.R. � 20.1304(c) to the issue before the Board, and a remand for RO consideration is not required.  It is also noted that the Veteran has repeatedly encouraged VA to speed the processing of his appeal, and has consistently waived RO consideration of evidence throughout the course of his appeal.  As such, there is no prejudice to the Veteran from the Board proceeding with his appeal.

FINDINGS OF FACT

1.  The weight of evidence is against a finding that the Veteran's current lower back disability either began during or was otherwise caused by his military service.

2.  The weight of the evidence is against a finding that the Veteran's current lower back disability was caused by, or secondary to, his service connected right lower extremity disabilities, or that it was aggravated by them.

CONCLUSION OF LAW

Criteria for service connection for a lower back disability have not been met.  38 U.S.C.A. � 1131 (West 2002); 38 C.F.R. �� 3.303, 3.306, 3.310 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. � 1131.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. � 3.303.

Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder.  38 C.F.R. � 3.310(a).  Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition.  When aggravation of a veteran's nonservice-connected condition is proximately due to, or the result of, a service-connected condition, the veteran shall be compensated for the degree of disability - but only that degree - over and above the degree of disability existing prior to the aggravation.  Allen v. Brown, 7 Vet. App. 439 (1995).

The provisions of 38 C.F.R. � 3.310 were amended effective October 2006.  See 71 Fed. Reg. 52744-47 (Sept. 7, 2006).  The amended regulation provides that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.  See 38 C.F.R. � 3.310(a), (b), as amended effective October 10, 2006.

The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is judged.  Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection may be made.  Allen v. Brown, 7 Vet. App. 439.  This had not been VA's practice, which suggests that the recent changes amount to a substantial change.  See Allen, 7 Vet. App. at 447-449.  Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. � 3.310  in effect before the change, which version favors the Veteran.

Service connection may also be granted for chronic diseases, such as arthritis and organic neurological diseases, when manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. �� 1101, 1112, 1113, 1137; 38 C.F.R. �� 3.307, 3.309.  As will be discussed below, no back disability was shown at separation or for a number of years after service, and therefore this presumption is inapplicable.

In July 1996, the Veteran filed a claim seeking service connection for a strained back, asserting that in 1982, while stationed at Ft. Gordon, he over-extended himself and was treated at the base hospital.  In September 2000, the Veteran asserted that his back disability was directly correlated to his active military service and to his current service connected disabilities (which included Morton's neuroma of the right foot, right ankle tendinitis, and a meniscus tear in the right knee).  In March 2001, the Veteran again asserted that his back was not properly treated in 1982.  In his substantive appeal in April 2005, the Veteran again reported experiencing lower back problems while at Ft. Gordon.

In December 2008, the Veteran wrote that he had been experiencing foot, leg, and back pain since late 1981/early 1982.  He asserted that he really believed that this occurred while training at Ft. Sill in Oklahoma from very strenuous training which involved carrying a full back pack for up to 30 miles.  He indicated that because they were in training, it was sometimes difficult to seek medical attention, adding that once basic training was completed, he went to the hospital at Ft. Gordon in 1982.  He stated that he was currently in a lot of discomfort.

As such, the Board will address the Veteran's service connection claims on both a direct and on a secondary basis.

The general timeline of the Veteran's back disability is as follows:  The Veteran's back was found to be normal at entry into service.  As discussed, the Veteran has on numerous occasions throughout the course of his appeal asserted that his back problems began in service in 1981 or 1982 while, in basic training.

Service treatment records do reflect the fact that the Veteran was seen in February 1982 with complaints of back pain since the previous morning.  At that time, he reported experiencing sharp back pain when bending over, but did not recall any actual trauma to the back.  The medical officer found the Veteran's lumbar area to be tender, but noted that straight leg raises were negative.  The Veteran was assessed with back pain NOS and prescribed medication and a heating pad.

While the Veteran's statements would indicate a back problem at that time, the fact remains that following this single treatment session there is no evidence in the service treatment records to show that he ever complained about his back again while in service.  The Veteran did at one point assert (after service) that it was difficult to get treatment while in basic training, but he served for more than two years after basic training without any record of him ever seeking any additional back treatment.

A lack of treatment does not necessarily establish a lack of symptomatology, as many soldiers on active duty do not actively seek medical attention.  However, in this case, the Veteran was clearly not unwilling or unable to seek medical treatment during this time in service, as there are numerous service treatment records describing treatment for non-back related health problems while he was on active duty and following basic training, undermining the Veteran's contention that it was difficult to get treatment in his case.

Also undermining the Veteran's factual assertion that he was experiencing back problems throughout service is the fact that he specifically denied having ever experienced recurrent back pain on his medical history survey completed in conjunction with his separation physical.  This is not to say that the Veteran denied back pain, because he simply denied all conditions.

This was also not a situation in which the Veteran denied all problems at his separation.  To the contrary, the Veteran did acknowledge foot trouble on the medical history survey, meaning that he reviewed the form, considered whether he had experienced recurrent back pain, but still answered in the negative.  This is not surprising, as no spinal defects were found on the Veteran's separation physical, and x-rays of the Veteran's back taken as part of the Veteran's separation physical did not demonstrate any significant radiographic abnormality, providing highly probative evidence against this claim.  In this regard, it is important to note that the disability he cited at separation (foot trouble) was service connected long ago.

Following service, the Veteran was not seen for any back problems for a number of years, during which time he worked for Honeywell and then at a Walgreens.

In July 1991, nearly a decade removed from service, the Veteran was seen by Dr. O.T. for complaints of chronic lower back pain and right lower extremity pain.  He denied any recent injury to his back, alleging that he had injured his back in 1981 while in the Army.  The Veteran reported that for many years he had experienced numbness and tingling in the lateral aspect of his right thigh.  A neurologist had allegedly told the Veteran two years earlier that he might have had a pinched nerve root in his back.  An MRI showed mild disc degeneration and mild posterior disc bulging at L4-5.  There was no evidence of a disc herniation.

In 1996, approximately a dozen years after separation, the Veteran first applied to VA for service connection for a back disability.

In August 2000, he presented to the orthopedic clinic at VA for an evaluation of pain and stiffness in his lower back and for a burning sensation in both forefeet which he reported having complained about since 1982 while in the Army.  The Veteran stated that at first his symptoms were intermittent in nature, but as time had passed, the pain and stiffness in his lower back had become more persistent and he reported having begun to experience discomfort in his right leg with numbness along the outer aspect of his thigh and lower leg.  It was noted that the Veteran worked in the pharmacy of a Walgreens where he was on his feet all day long and was frequently bending, lifting, and twisting his back.  The medical professional stated that an MRI in August 1999 showed degeneration of a lumbosacral disc.  The Veteran was diagnosed with spondylolisthesis with a history of right radiculopathy, but no opinion was advanced as to the etiology of his condition.  The medical professional stated that the Veteran should refrain from prolonged standing on his feet, frequent bending, heavy lifting, or carrying heavy loads.

The Veteran was provided with a VA examination in September 2001 at which he once again asserted his belief that his lower back condition started in 1982.  He denied any specific injury, but thought that it probably began during basic training while carrying the heavy equipment.  He recalled having x-rays taken in service, but being told that nothing was wrong.  The Veteran reported having experienced lower back pain since that time, and currently had it every day.  The Veteran was a manager of a Walgreens store where he had to lift things and had to walk all day long.  Following an examination, the Veteran was diagnosed with spondylolisthesis.  With regard to the question of whether the Veteran's lower back disability was secondary to his right knee, foot, and/or ankle conditions, the examiner opined that it was unlikely to be secondary to any of those.

In July 2003, the Veteran asserted that he had experienced lower back pain for 20 years that was worsened with lifting activities at work.  He indicated that his pain was complicated by knee surgery in 1999.

In July 2004, the Veteran underwent a VA examination.  He reported being on active service from 1981-1984 and then from 1989-1990 and stated that his health had generally been good, except for his right knee, right ankle, and right foot.  Of note is the fact that the Veteran did not mention his back disability, only singling out three lower extremity problems.

In April 2006, L.S., DC, wrote that he was treating the Veteran for chronic, severe, lower back pain, asserting that the problem had begun in 1982 and that the Veteran had experienced pain ever since.  L.S. stated that because the Veteran's back pain began on active duty and had continued and worsened, it was his opinion that the Veteran's back condition was due to his injury sustained in 1982 and was therefore service related.  There is no indication as to how L.S. had concluded that the Veteran's back disability had begun in 1982.

In August 2011, L.S. clarified his position, stating that it was not based on the subjective history as related by the Veteran.  Rather, he wrote that the onset of the Veteran's lumbar spinal condition did begin in 1982 and should be service connected, explaining that the pain and problems that began in the Veteran's ankle, feet, and knees, while on active duty altered the normal biomechanical stress in his hips and lower back.  This process he explained was not unlike a wheel on an automobile that is out of alignment and quickly wears out the tread on a tire.  He added that the abnormal gait and movements caused accelerated degenerative changes in the Veteran's lower back which became symptomatic sometime later.  He added that the excessive amount of intervertebral disc degeneration and arthritic spurring present for the Veteran's age was evidence that the condition began in 1982.  However, L.S. did not explain why the amount of degenerative changes could not have started after service, given the Veteran's physically exerting post-service employment.

In July 2006, the Veteran acknowledged that prior to April 2006, he had not been receiving any kind of aggressive treatment for his back, only periodic checkups and oral pain medication.

In December 2008, a fellow Walgreens employee who had worked with the Veteran since 2002 stated that he had witnessed the Veteran's back worsening, which limited his ability to do the manual labor in the store such as unloading the warehouse trucks.

In May 2010, the Veteran underwent a VA examination.  The Veteran again asserted that he began having lower back pain in approximately 1981 or 1982, secondary to carrying a rucksack.  He denied any specific back injury and he acknowledged not being forced to leave service early on account of his back.  He stated that after being released from active duty he continued to experience lower back pain, but denied any history of any motor vehicle accidents or significant falls.  The examiner, an orthopedic doctor, noted that the Veteran was a diesel mechanic while on active duty, and then worked at Honeywell and then as a manager at Walgreens.  He was currently working at Wal-Mart.  The Veteran was diagnosed with degenerative arthritis of the thoracolumbar spine of mild degree.  Following the examination and a review of the Veteran's claims file, the examiner opined that it was less likely than not (meaning a less than 50 percent probability) that the Veteran's current back disability either began during or was otherwise caused by his military service.

Here, the Board is confronted with a number of medical opinions which provided conflicting opinions about the etiology of the Veteran's current lower back disability.  In such a situation, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement.  See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden  v. Derwinski, 2 Vet. App. 97, 101 (1992).

In this case, the chiropractor in his first opinion stated that the Veteran had developed pain in 1982 which had continued ever since.  However, this statement is not actually supported by the evidence of record.  As discussed above, the Veteran did have a single complaint of back pain in service, but following that single treatment session, he did not seek any additional back treatment for his remaining two years in service, he specifically denied having any back pain at separation, and a separation physical found his back to be normal.  This evidence was provided contemporaneously with the Veteran's service as opposed to recollections first recounted years later and in conjunction with a claim for VA benefits, and the contemporaneous evidence is therefore found to be the most probative evidence of the condition of the Veteran's back at separation.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest is recognized as a factor which may affect the credibility of a claimant's statements).

The chiropractor also seemed to conclude that the Veterans problems in his lower extremities accelerated the deterioration of the Veteran's back.  However, he did not appear to account for the Veteran's post-service employment which included being on his feet all day long and frequently bending, lifting, and twisting his back (according to a August 2000 treatment record).  This employment also apparently involved unloading the warehouse trucks, as a fellow Walgreens employee wrote in December 2008 that the Veteran was no longer able to do the manual labor in the store such as unloading the warehouse trucks, thereby implying that at one point the Veteran was helping to unload trucks.  While the chiropractor discussed the Veteran's lower extremity problems and linked the Veteran's current disability to his time in service, the failure to account for the physically intense post-service employment and the lack of back symptoms at separation and for the two years before, weakens the probative value of the chiropractor's opinion.

It is also noted that the chiropractor in August 2011 suggested that the Veteran's abnormal gait and movements caused accelerated degenerative changes in his lower back.  Yet, in his April 2006 letter, the chiropractor did not mention any altered gait.  There is no indication of an altered gait in the records from his treatment of the Veteran.  Furthermore, a review of the various VA examination reports suggests that the Veteran does not in fact have an altered gait.  For example, at the VA examination in September 2001, the Veteran's gait was noted to be within normal limits.  Similarly, at the most recent VA examination in May 2010, the examiner stated that the Veteran walked down the hall with a normal gait, with normal symmetry motion of the cervical and thoracolumbar spine.  Moreover, the alignment of the lower extremities was noted to be normal through the knees and right and left ankles with normal alignment of the Achilles tendon to the tibula-fibula and to the mid and forefoot bilaterally.  The Board does acknowledge that at a July 1997 VA examination of the Veteran's foot, it was noted that the Veteran walked with a slight limp, but even then, the limp was only slight.

Conversely, two VA opinions have concluded that it was less likely than not (meaning a less than 50 percent probability) that the Veteran's current back disability either began during or was otherwise caused by his military service or his service connected disabilities.

The examiner in September 2001 did examine the Veteran and review his claims file, but the opinion that was provided did not include any rationale, and it is therefore of diminished probative value.

However, with regard to the May 2010 VA examination, the examiner was fully apprised of the Veteran's contentions, and noted his post-service employment.   Following the examination and a review of the Veteran's claims file, the examiner opined that it was less likely than not (meaning a less than 50 percent probability) that the Veteran's current back disability either began during or was otherwise caused by his military service.  This conclusion was supported by the orthopedic physician's review of the Veteran's claims file which did not find any significant entries relating to the spine, and by his thorough examination of the Veteran.

While the chiropractor's statement linked the appellant's back disability with his military service, he did not provide any explanation or rationale for his statement; and a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  See Miller v. West, 11 Vet. App. 345, 348 (1998).

Moreover, the chiropractor's opinion appears to have initially been largely based on the Veteran's reported medical history; but VA is not required to accept medical opinions that are based upon an appellant's recitation of medical history.  Godfrey v. Brown, 8 Vet. App. 113, 121 (1995).  Rather, VA must evaluate the competency and credibility of the Veteran's statements.  To this end, a layperson, such as the Veteran, is considered competent to report on the onset and continuity of his current back symptomatology as it is something that should be capable of lay observation.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

However, in adjudicating this claim, the Board must assess not only competency of the Veteran's statements, but also their credibility.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

In this case, the critical evidence is not the medical opinions of record, but whether the Veteran's statement that he has had a back problem since service is believable.  If the Board finds this statement believable, a medical opinion is not necessary as the Board would grant the claim simply on the reliability of the Veteran's statement that he has had a back problem since service.

As noted above, the Veteran's current assertions that his back problems began in service (and continued to the present day) are directly contradicted by the fact that aside from a single back complaint in service, the Veteran sought no other back treatment in service (while seeking treatment for other problems), denied any back problems at separation (while citing other problems), and had his spine found normal by his separation physical.  Additionally, the Veteran's first report of back trouble came approximately twelve years after separation.  While he has consistently asserted since 1996 that his back pain had continued since service, this negative evidence has more probative value than the Veteran's current assertions.

As such, the Board does not find the Veteran's assertion that his back problems began in service and have continued to the present day to be credible.  As such, because the chiropractor's opinion was largely based on the Veteran's assertion that his back pain had continued since his time in service, it too is considered to be less credible; as a medical opinion can be no better than the facts alleged by a veteran, and an opinion based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993).

The Board has considered the weight of medical evidence but as described above, the private opinion appears to be based on inaccurate histories and therefore is afforded less weight than the VA examination which recorded an accurate history.  The lay statement submitted in support of this case is also of limited probative value regarding the critical issue in this case: did the Veteran have a back problem from service?

Given this conclusion, the weight of evidence is against a finding that the Veteran's lower back disability either began during or was otherwise caused by his military service, or that it was secondary to one of his service connected disabilities.  Evidence has also not been submitted to establish that the Veteran's lower back disability was aggravated by his service connected lower extremity disabilities.  As noted above, the evidence did not show that the Veteran's lower extremity disabilities caused an abnormal gait.

Therefore, the criteria for service connection have not been met, and the Veteran's claim is denied.

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. �� 5102, 5103, 5103A, 5107; 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a).

Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must:  (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).

In the present case, required notice was provided by letters dated in February 2004 and December 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above.  The December 2008 letter also informed the Veteran how disability ratings and effective dates were established.  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to content.

The Board finds that any defect concerning the timing of the notice requirement was harmless error.  Although the notice provided to the Veteran was not given prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  Additionally, the Veteran's claim was readjudicated following completion of the notice requirements.

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Private and VA treatment records have been obtained.  Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined.

The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file).  The Board finds the most recent VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim.  The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability.

VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

ORDER

Service connection for a back disability is denied.

____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: L HOWELL

disposition: remanded

text: This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).

text:
Citation Nr: 1225000
Decision Date: 07/18/12    Archive Date: 07/20/12

DOCKET NO.  08-29 026	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon

THE ISSUES

1.  Entitlement to service connection for Guillain-Barre Syndrome (GBS) due to chemical exposure and/or to service-connected diabetes mellitus, type 2 (diabetes).

2.  Entitlement to service connection for chronic inflammatory demyelinating polyneuropathies (CIDP) due to chemical exposure and/or to service-connected diabetes.

REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs

WITNESSES AT HEARING ON APPEAL

Veteran and spouse

ATTORNEY FOR THE BOARD

Tabitha G. Macko, Counsel

INTRODUCTION

The Veteran served on active duty from August 1961 to August 1965.

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a rating decision in June 2006 by the Portland, Oregon, Regional Office (RO) of the Department of Veterans Affairs (VA).

The Veteran appeared and provided testimony before a Veterans Law Judge (VLJ) in December 2010.  A transcript of the hearing has been associated with the claims file.  In March 2011, the Board granted service connection for coronary artery disease, denied service connection for hearing loss and tinnitus, and remanded the remaining claims.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.

REMAND

In June 2012, the Veteran was informed that the VLJ who had conducted his December 2010 Travel Board hearing was no longer employed by the Board.  As the VLJ who conducts a hearing on appeal must participate in any decision made on that appeal, he was given the opportunity to testify at another hearing.  See 38 U.S.C.A. � 7107(c) (West 2002 & Supp. 2011); 38 C.F.R. � 20.707 (2011).

In July 2012, the Veteran indicated that he would like to testify before another VLJ at the RO located in Portland, Oregon.  As the RO/AMC schedules Travel Board hearings, a remand of this matter to the RO/AMC is warranted.

Accordingly, the case is REMANDED for the following action:

The RO/AMC should take appropriate action to schedule the Veteran for a hearing before a traveling VLJ at the Portland RO.  A copy of the letter scheduling the Veteran for that hearing, with a copy to his representative, should be included in the claims folder.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2011).

_________________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2011).


judge_norm: THOMAS J DANNAHER

disposition: denied

disposition: granted

condition: skin

text:
Citation Nr: 1226000
Decision Date: 07/27/12	Archive Date: 09/11/12

DOCKET NO. 08-39 025	)        DATE

On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana

THE ISSUE

Entitlement to an increased rating for residuals of a shell fragment wound of Muscle Group (MG) XI, left calf, currently rated as 10 percent disabling.

REPRESENTATION

Appellant represented by:   The American Legion

ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel

INTRODUCTION

The Veteran served on active duty from July 1968 to June 1971.

This appeal to the Board of Veterans' Appeals (Board) arose from a July 2007 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Indianapolis, Indiana, that continued a 10 percent rating for residuals of a shell fragment wound to the left calf.

FINDINGS OF FACT

1. The residuals of a shell fragment wound of the left calf are moderately disabling and are manifested by pain and a lowered threshold for fatigue; moderately severe muscle damage is not exhibited.

2. Resolving all doubt in the Veteran's favor, the scarring from the shell fragment wound of the left calf is painful.

CONCLUSIONS OF LAW

1. The requirements for an evaluation higher than 10 percent for residuals of a shell fragment wound of left calf, MG XI are not met. 38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. �� 3.159, 3.321(b)(1), 4.1, 4.7, 4.10, 4.56, 4.73, Diagnostic Code (DC) 5311 (2011).

2. Resolving all doubt in the Veteran's favor, the scarring from the shell fragment wound of the left calf is painful. 38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. �� 3.159, 3.321, Diagnostic Code (DC) 7804 (2011).

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REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. Prior to issuance of the rating decision appealed, VA notified the Veteran in January 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and explanation of how disability ratings and effective dates are assigned. The Board finds the letter was both time- and content-compliant. See 38 C.F.R. � 3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA complied with the VCAA notice requirements.

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. � 3.159(c). The Veteran's representative initially asserted the RO did not seek to obtain records of a private physician, Dr. P, the Veteran identified on a VA Form 21-4142. After the RO informed the Veteran that a new authorization and release was needed to obtain any related records extant, the Veteran informed the RO that there were no records to obtain; and, the letter submitted earlier by Dr. P was the sole evidence from him. There are no other assertions that there is additional evidence to obtain. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Hence, the Board may address the merits of the appeal without prejudice to the Veteran. Id.

The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and

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what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

Governing Law and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. � 1155; 38 C.F.R. � 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. � 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. � 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. � 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. � 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. � 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. Where an increase in the level of a service-connected disability is at issue, however, the primary concern is the present level of disability. Francisco v. Brown, 1 Vet. App. 55 (1994). Nonetheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

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Analysis

By way of history, the Veteran sustained multiple shell fragment wounds, including to his left calf, while in the Republic of Viet Nam in August 1969. The service treatment records do not include details of the treatment, but a September 1971 VA examination report notes the examiner assessed a penetrating wound of the left calf. The Veteran described a dull aching pain over the back of the left calf. On deep palpation, there was some paresthesia noted. The Veteran exhibited normal gait. A March 1972 rating decision granted service connection for an injury to MG XI of moderate severity and assigned an initial 10 percent rating under DC 5311, effective in July 1971. See 38 C.F.R. �� 4.56, 4.73. VA received the Veteran's current claim for an increased rating in October 2006.

In his statement in support of his claim, the Veteran related that he experienced pain when walking, lying in bed, and when crossing his legs while sitting. He described the pain as sometimes sharp, while at other times it was dull. The Veteran also noted that cold weather aggravated his symptoms.

The May 2007 examination report reflects the Veteran reported one piece of shrapnel removed from his left calf was as large as one centimeter (cm) in length. He related it penetrated, bounced off of the bone, and came out going around the nerve. The Veteran denied any weakness but reported a pins-and-needles sensation around the scar site with any contact, to include by loose clothing. The Veteran reported he was uncomfortable crossing his left leg over the right because the pressure caused the pins-and-needles sensation in the area. He reported further that, occasionally, the sensation radiated down, and up as high as the calf, but he denied any type muscle ache. The Veteran also reported an occasional Charlie horse-type muscle spasm which easily resolved, as well as some mild fatigability. The examiner noted the Veteran reported minimal impact on his work, as he walked slower when his left calf symptoms were active. As far as his home activities were concerned, the Veteran reported he had to purchase a riding lawn mower, because the pins-and-needles sensation bothered him too much when he pushed a mower.

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Physical examination revealed an approximate four cm scar transversely across the mid-left posterior calf. It was tender to light palpation but not deep palpation. The left knee and left ankle manifested full range of motion (ROM) and 5/5 strength throughout the left lower extremity. Sensation was intact distally to monofilament examination. The examiner noted the Veteran's report of fatigability with dorsiflexion of the right foot on weight bearing activities. X-rays were read as having shown minimal osteoarthritic ankle changes but without any shrapnel in the subcutaneous tissue and musculature. The examiner diagnosed left calf muscular injury with mild fatigability.

In his notice of disagreement (NOD), the Veteran asserted the examiner informed him the computer was down, the Veteran was his last patient prior to his lunch break, and he essentially rushed through the examination as it concerned the left calf. The Veteran noted the examiner was quite thorough with the other sites of his shell fragment wounds, but not so with the left calf, which was the reason he applied for an increased rating. The Veteran asserts he informed the examiner he experienced symptoms from having crossed his legs in the waiting room, but the examiner did not note that fact. The Veteran asserted he experienced different symptoms at different times of the day; and, different situations may yield different sensations of discomfort: sometimes pins and needles, and sometimes muscle fatigue. The Veteran asserted he awoke during the night and was unable to get back to sleep because he crossed his legs the wrong way while asleep. He also explained that, while the examiner's twisting of the muscle did not elicit pain, the area was very painful on his way home and the next day. The Veteran asserted that his symptoms are now active day and night, which was not the case during the earlier part of his life. As a result, the Veteran asserts his left calf residuals should be rated at the next higher level, but the examiner excused him without giving him the opportunity to explain those factors.

Dr. P noted in a January 2008 letter that the Veteran complained of a longstanding history of calf pain and neuropathy. The Veteran reported it affected his gait, increased with standing, and caused him neuropathic pain issues. The Veteran reported the pain was worse when he crossed his legs, and it awoke him from sleep.

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After consideration of the Veteran's NOD, The RO arranged another examination. The May 2009 examination report reflects the Veteran reported intermittent throbbing pain of the left calf, usually precipitated by cold, damp weather. On a scale of 1 to 10, the Veteran assessed the pain as 4-5/10, and it was temporarily relieved by application of heat. The Veteran denied use of analgesics because he disliked taking medication. He also reported occasional pain and muscle spasm while standing or walking. The Veteran reported he could walk one-half to one mile without difficulty, and that he worked for the postal service as a processing clerk, which required prolonged standing, pivoting on his heel, and making twisting movements with his left foot and left leg. The Veteran reported mild intermittent throbbing and occasional muscle spasm pain during the early part of his eight-hour shift. The symptoms worsened in frequency by the end of the shift. He reported he had not experienced any incapacitation due to his symptoms or took time off from work. The Veteran denied any impact on his activities of daily living.

Physical examination of the left calf revealed mild deep pain in the left calf muscles on deep palpation. There was no loss of deep fascia or muscular tissue, nor were there any adhesions. There was normal strength of the muscles, as the left calf strength was the same as on the right. There was no muscle herniation, tendon damage, or damage to the bone or vascular structures. ROM of the left knee and left ankle were normal; and, repetitive movements of those joints did not elicit pain, weakness, fatigue, lack of endurance, or loss of ROM. There was no evidence of incoordination of left calf muscles. The examiner diagnosed residuals of injury of MG XI of the left calf.

In an August 2009 statement, the Veteran also complained about the May 2009 examination. The Veteran asserted the examiner spent more than half to three-fourths of the allotted time reading from the computer and taking notes, and the examiner continually looked at his watch. The Veteran disputed the examiner's notation that the Veteran assessed his pain as 4-5/10. The Veteran believed he said 5-6/10. The Veteran also asserted the examiner allowed him less than a minute to explain his pain and other symptoms. The Veteran also explained that he is not one to complain about pain, as most of the time he presses on with his daily activities in

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spite of the pain. He added that when he does complain of pain, he is really in pain. The Veteran's wife's statement echoed the Veteran's report of his symptoms.

The criteria for rating muscle injuries is covered under 38 C.F.R. �� 4.55, 4.56, and 4.73. Muscle injury ratings are not to be combined with a peripheral nerve paralysis rating of the same body part unless the injuries affect entirely different functions. 38 C.F.R. � 4.55(a). The skeletal muscles of the body are divided into muscle groups. 38 C.F.R. � 4.55(b). A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. � 4.56(b). The cardinal signs and symptoms of muscle disability are described in 38 C.F.R. � 4.56(c): loss of power; weakness; lowered threshold of fatigue; fatigue-pain; impairment of coordination; and uncertainty of movement.

Disabilities are classified as slight, moderate, moderately severe or severe under diagnostic codes 5301 to 5323. 38 C.F.R. � 4.73. These terms are described in 38 C.F.R. � 4.56(d). A slight disability of muscles stems from a simple wound of a muscle without debridement or infection. 38 C.F.R. � 4.56(d)(1)(i). It heals with good functional results, is superficial, results in minimal scarring and shows no impairment of function or retained metallic fragments. 38 C.F.R. � 4.56(d)(l)(i)-(iii). There are no cardinal signs of muscle disability. 38 C.F.R. � 4.56(d)(1)(ii).

For moderate disability, the type of injury is "through and through" or deep and from a single bullet; without explosive effect, residual debridement or prolonged infection. 38 C.F.R. � 4.56(d)(2)(i). The record of moderate disability would show one or more of the cardinal signs and symptoms of muscle disability; particularly the low threshold of fatigue. 38 C.F.R. � 4.56(d)(2)(ii). Objective findings are entrance and exit scars, loss of fascia or muscle substance, and lowered threshold of fatigue when compared to the sound side. 38 C.F.R. � 4.56(d)(2)(iii).

Characteristics of moderately severe disability include: a deep penetrating wound; prolonged infection: debridement; prolonged treatment for wound; evidence of inability to keep up with work requirements; entrance and exit scars through one or

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more muscle groups; loss of deep fascia; and impacted strength and endurance. 38 C.F.R. � 4.56(d)(3).

Characteristics of severe disability include all of the above plus: evidence of wounds due to large or multiple missiles; shattering bone fracture; extensive debridement; prolonged infection; intramuscular binding and scarring; consistent complaint of cardinal signs; marked scars; obvious loss on palpation; abnormal contraction; X-ray evidence of multiple scattered foreign bodies; adhesion of scars; atrophy; adaptive contraction of an opposing group of muscles, etc. 38 C.F.R. � 4.56(d)(4).

MG XI is responsible for propulsion, plantar flexion of the foot, stabilization of the arch, flexion of the toes, and the knee and includes the posterior and lateral crural muscles and the muscles of the calf; the triceps surae (gastrocnemius and soleus), tibialis posterior, peroneus longus, peroneus brevis, flexor hallucis longus, flexor digitorum longus, popliteus, and plantaris. For slight impairment, a zero percent rating is warranted; for moderate impairment, a 10 percent rating is warranted; for moderately severe impairment, a 20 percent rating is warranted; and, for severe impairment, a 30 percent rating is warranted. 38 C.F.R. � 4.73, DC 5311.

While the Veteran expressed his dissatisfaction with both examinations, the reports of those examinations reflect the examiners did in fact note the core essence of his reported symptoms. For example, the Veteran complained that the examiner did not allow him to explain what he, the Veteran, experienced in the waiting room, but the Board notes the examination report reflects the Veteran's reported pain when he crossed his legs. The Board finds both examinations adequate for review purposes. The Board also notes Dr. P's letter is based entirely on what the Veteran reported to him. Dr. P did not add any independent assessment or diagnosis of his own. This is not to discount or dismiss the Veteran's reports, as he is fully competent to provide probative evidence of his symptoms. See 38 C.F.R. � 3.159(a)(2). Nonetheless, the Board has already noted and considered the Veteran's reported history. Further, objective clinical examination did not confirm Dr. P's notation of neuropathy.

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The Board notes the Veteran's statements and that of his wife, as to his symptoms, as they both are, competent to describe the symptoms observed in the Veteran. See id. The Board also acknowledges the Veteran's reported pain and the overall impact of his functional loss as reported by him, and his belief that the residuals of shell fragment wound of the left calf should be rated higher. Nonetheless, the Board has determined that a disability rating in excess of 10 percent is not warranted based on the criteria for muscle injuries, and the Veteran's disability is appropriately rated as moderate.

The objective findings at clinical examinations revealed full motor strength of 5/5, normal sensation, and no loss of ROM on repetitive use of the left leg. The Board finds the Veteran's disability cannot be described as moderately severe as the objective evidence does not show a deep penetrating wound nor prolonged infection. There were no entrance and exit scars through any muscle groups, no loss of deep fascia, nor impacted strength and endurance. The objective findings comport with a finding of a lowered threshold of fatigue. Thus the preponderance of the evidence shows a moderate disability of the MG XI muscle injury. While the Veteran's pain is chronic, the 10 percent rating is deemed reasonable compensation for the functional loss due to the residual pain and lowered threshold of fatigue.

The Rating Schedule provides a compensable rating for scars when there is evidence that they are unstable or painful. Five or more scars that are unstable or painful should be rated at 30 percent. Three or four scars that are unstable or painful should be assigned a 20 percent rating. One or two scars that are unstable or painful should be assigned a 10 percent rating. See 38 C.F.R. � 4.118, Diagnostic Codes 7804 (2011).

While a higher evaluation for resulting muscle damage is not warranted, the May 2009 VA examination report noted that the residual scar was hypersensitive. Resolving all doubt in the Veteran's favor, the scarring nearly approximates the criteria for a separate 10 percent evaluation pursuant to 38 C.F.R. � 4.118, Diagnostic Code 7804. However, there is no showing of instability, disfigurement, infection, or other symptoms from the scar and an evaluation greater than 10 percent is not met or approximated.

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The Board has considered whether the Veteran is entitled to a staged rating for any part of the rating period on appeal. Hart, 21 Vet. App. 505. The Board finds no factual basis for a staged rating for any part of the rating period, as the residuals of a shell fragment wound of the left calf have manifested at the same rate for the entire period. The Board has also considered step one under Thun v. Peake, 22 Vet. App. 111 (2008), and finds the schedular rating criteria describes the severity of the Veteran's MG XI injury and residual scarring. This means the Veteran's left calf MG injury and residual scarring does not present an exceptional disability picture. In the absence of an exceptional disability picture, there is no basis for referral for consideration of a higher rating on an extraschedular basis. See 38 C.F.R. � 3.321(b)(1).

In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim(s), however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999).

ORDER

An increased rating greater than 10 percent for residuals of a shrapnel fragment wound of Muscle Group (MG) XI, left calf, is denied.

A separate 10 percent rating for scarring on the left calf form the shrapnel fragment wound is allowed, effective May 12, 2009, subject to the regulations governing the award of monetary benefits.

THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

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judge_norm: C L KRASINSKI

text:
Citation Nr: 1227000
Decision Date: 08/06/12    Archive Date: 08/10/12

DOCKET NO.  09-34 543	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona

THE ISSUE

Entitlement to service connection for residuals of colon cancer as due to exposure to ionizing radiation.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARINGS ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

Kristy L. Zadora, Counsel

INTRODUCTION

The Veteran had active duty service from March 1951 to March 1955.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision of the Jackson, Mississippi Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's claim for service connection for colon cancer.

Jurisdiction over this matter was transferred to the Phoenix, Arizona RO immediately after the issuance of the February 2008 rating decision.

A review of the Virtual VA paperless claims processing system does not reveal any additional evidence pertinent to the claim on appeal.

The Veteran testified before a Decision Review Officer (DRO) at a March 2009 hearing and before the undersigned Acting Veterans Law Judge at a June 2012 RO (Videoconference) hearing.  Hearing transcripts have been associated with the claims file.

During the June 2012 hearing, the Veteran's request to hold the record open for an additional 30 days to allow the opportunity to submit additional evidence was granted.

The Veteran submitted additional evidence in June 2012.  This evidence was not accompanied by a waiver of RO consideration.  However, such a waiver is not required as it is not pertinent to the instant appeal.  See 38 C.F.R. � 20.1304 (2011).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2011).  38 U.S.C.A. � 7107(a)(2) (West 2002).

The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C.  VA will notify the Veteran if further action is required.

REMAND

The Veteran contends that he developed colon cancer as a result of his exposure to ionizing radiation while working as a radiation specialist during service.  He recalled undergoing monthly dosimetery tests and wearing film badge monitoring during service.  He also alleged suffering from infection mononucleosis due to his excessive exposure to radiation sometime in 1953.  Service treatment records confirm his work as an X-ray technician and note that his white blood count was found to be decreased in October 1952.   Post service treatment records reveal a diagnosis of colorectal cancer and a right hemicolectomy in February 1999.  In addition, the Veteran reported in an April 2007 statement that he worked as an X-ray technician for multiple years after service and that he worked as a state radiation health physicist for nearly 10 years.

Colon cancer as well as any other cancer are listed as a radiogenic diseases under 38 C.F.R. � 3.111(b) (2011).  VA regulations provide that a request must be made for any available records concerning the Veteran's purported exposure to radiation, to include but are not limited to a Record of Occupational Exposure to Ionizing Radiation (DD Form 1141) and service medical records.  The RO/AMC should then forward all such records to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies.  38 C.F.R. � 3.311(a)(2)(iii) (2011).  If no such records are available, the RO/AMC should continue to develop a veteran's claim under the procedures provided in 38 C.F.R. � 3.311 (2011), including requesting dose data and/or estimate(s) from the appropriate source(s), including the Defense Threat Reduction Agency (DTRA) (previously known as the Defense Nuclear Agency).  Thereafter, the RO/AMC should forward this case to the VA Under Secretary for Benefits for appropriate action under 38 C.F.R. � 3.311(c) (2011), to include an opinion from the VA Under Secretary for Health as to whether it is at least as likely as not that the Veteran's colon cancer was caused by his purported radiation exposure in service.

The Board notes that the RO had requested the Veteran's DD Form 1141 but a July 2007 Personnel Information Exchange System (PIES) response indicated that this document was not a matter of record.  An August 2007 Memorandum from the United States Air Force Safety Center (AFSC) indicated that there was no external or internal exposure data related to the Veteran in the United States Air Force (USAF) Master Radiation Exposure Registry, which was the single repository for occupational radiation exposure monitoring for all Air Force Personnel.  A December 2007 AFSC Memorandum indicated that while medical X-ray technicians did have the potential for ionizing radiation exposure as part of their duties, dose reconstructions were beyond the scope of the AFSC.

Accordingly, the case is REMANDED for the following action:

Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2011).  Expedited handling is requested.)

1.  The RO/AMC should forward the Veteran's claims file to the Under Secretary for Health under 38 C.F.R.            � 3.311(c) (2011) as provided by � 3.311(b)(1) (2011).  See Wandel v. West, 11 Vet. App. 200, 205 (1998).  If the RO/AMC is unable to obtain radiation dose data for the Veteran pursuant to numbered paragraph (2) above, the VA Under Secretary for Health should generate a radiation dose estimate.

2.  After an dose estimate has been provided by the Under Secretary for Health, or otherwise obtain in accordance with 38 C.F.R. � 3.311(a)(3), the case should be forwarded to the VA Under Secretary for Benefits to obtain an opinion as to relationship between the Veteran's colon cancer to claimed in-service radiation exposure.   The opinion should furnish answers to the following questions:

(a)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's colon cancer had its onset during the Veteran's period of active duty service from March 1951 to March 1955; or was any such disability caused by any incident or event that occurred during his period of service, including any exposure to ionizing radiation as a radiation technician?  The opinion provider is asked to specifically comment on the Veteran's contention that the October 1952 treatment note documenting his decreased white blood cell count was the result of radiation exposure.

(b) What is the relationship, if any, between the Veteran's colon cancer and his reports post-service work as an X-ray technician and radiation health specialist?

If additional evidence is needed, pursuant to a response from an opinion provider above, the appropriate steps should be taken to obtain such evidence or the reasons and bases for not doing so should be clearly set forth.

It is noted that the absence of evidence of treatment for cancer in the Veteran's service treatment records cannot, standing alone, be a sufficient rationale for providing a negative opinion.

The opinion provider is advised that Veteran and other laypersons are competent to report personal observations of the Veteran's symptoms and treatment, and such reports must be considered in formulating any opinions.

If the opinion provider rejects the lay reports of the Veteran and other laypersons, he or she should provide the reason(s) for doing so.
3.  The RO/AMC should review the opinion report(s) to insure that it (they) contain all findings and opinions requested in the remand.

4.  If any benefit sought on appeal remains denied, the RO/AMC should issue a supplemental statement of the case, before the claims file is returned to the Board, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2011).

_________________________________________________
C. L. KRASINSKI
Acting Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2011).


judge_norm: M E LARKIN

text: Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, commonly referred to as direct service connection; or for aggravation of preexisting injury suffered or disease contracted in the line of duty, commonly referred to as a claim for aggravation. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. [is remanded]

text:
Citation Nr: 1228000
Decision Date: 08/14/12    Archive Date: 08/21/12

DOCKET NO.  05-35 768A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California

THE ISSUES

1.  Entitlement to service connection for pulmonary tuberculosis.

2.  Entitlement to service connection for right leg bursitis.

3.  Entitlement to nonservice-connected pension benefits.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Havelka, Counsel

INTRODUCTION

The Veteran served on active duty from October 30, 1972 to December 7, 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which in part, denied service connection for pulmonary tuberculosis and denied entitlement to nonservice-connected pension benefits.  A June 2006 RO rating decision in part denied service connection for right leg bursitis.

In August 2009, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC.  A transcript of this testimony is associated with the claims file.

In September 2009 the Board rendered a decision on the Veteran's claim.  In October 2011 the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision with respect to the issues indicated above and remanded the case.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.

REMAND

The Veteran's primary claims are for service connection for pulmonary tuberculosis and for bursitis of the right leg.

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, commonly referred to as direct service connection; or for aggravation of preexisting injury suffered or disease contracted in the line of duty, commonly referred to as a claim for aggravation.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.

A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 C.F.R. � 3.306(a).  Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition.  38 C.F.R. � 3.306(b) (2002).

When no pre-existing injury or disease is noted upon entry into service, the Veteran is presumed to have been sound upon entry.  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's injury or disease was both pre-existing and not aggravated by service.  38 U.S.C.A. � 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999).  It is an onerous evidentiary standard, requiring that the result be undebatable.  Cotant v. West, 17 Vet. App. 116, 131 (2003).

On October 10, 1972 an enlistment examination of the Veteran was conducted.  The examination report indicates that the Veteran was enlisting in the Army (USA).  On the Report of Medical History, the Veteran specifically denied a history of tuberculosis.  Clinical evaluation of the Veteran's lungs and chest was normal along with a notation of a normal chest x-ray examination.  The examiner indicated that the Veteran was qualified for enlistment.

On October 24, 1972 a second enlistment examination of the Veteran was conducted; this time it indicated that he was enlisting in the Marine Corps. Again, on the report of medical history he specifically denied a history of tuberculosis.  Clinical evaluation of the Veteran's lungs and chest was again normal along with a notation of a normal chest x-ray examination.  The examiner indicated that the Veteran was qualified for enlistment.

The Veteran entered active duty in the Marine Corps on October 30, 1972.  A service treatment record reveals that the Veteran was hospitalized from November 17 to November 20, 1972 for treatment of cellulitis of the right hip area.  He was discharged to duty on November 21, 1972 with a follow-up antibiotic medication prescribed.

During the Veteran's inpatient treatment, he was seen at the recruit immunization section of the medical facility on November 17, 1972; at that time positive PPD test results for tuberculosis were noted.  Upon evaluation of his medical history, the Veteran reported previous infection with tuberculosis in 1968 and that he was treated with medication at that time.  Chest x-ray examination of the Veteran was conducted on November 21, 1972.

A Medical Board Report dated November 28, 1972 reveals that the Veteran reported that he had active tuberculosis in 1968 and that he was treated for three years with oral medication.  The recent positive PPD test results were noted.  X-ray examination revealed a 1 centimeter calcified density in the right upper lung lobe.  The diagnosis was old pulmonary tuberculosis which existed prior to service and was not aggravated by service.  The Veteran was separated from service because his positive history of tuberculosis made him unable to meet the minimum standards for enlistment.  The Veteran was discharged from active duty on December 7, 1972.

In written statements, and his hearing testimony, the Veteran asserts that because of his poor English language ability he did not understand the questions at that time of his Medical Board proceedings during service.  He asserts that he did not tell the service department medical personnel that he had a prior history of active tuberculosis in 1968.  He further claims that he did not have active tuberculosis prior to entry into service.

Remand for examination and a medical opinion related to the Veteran's claim for service connection for pulmonary tuberculosis is required.

The claim for service connection for right leg bursitis also requires remand.  Recent VA medical records indicate a diagnosis of "bursitis" on the Veteran's diagnosis and problem list.  However, close examination of the VA medical records does not reveal the anatomical location of this alleged bursitis.  Also, the medical records contain no objective evidence to support the diagnosis.  Essentially, this diagnosis appeared on the Veteran's VA medical problem list and seems to have been continued on the list despite a complete absence of any objective medical evidence to support the diagnosis.  The Veteran alleges that he has right leg bursitis as a result of the cellulitis infection of the skin of his right hip area during service.

When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination.  Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).

Finally, the claim for nonservice-connected pension benefits is intertwined with the ultimate resolution of the above claims for service connection.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for the appropriate examination to determine the nature, extent, and etiology of any current, or residual, disability of pulmonary tuberculosis.

The examiner should elicit a detailed medical history of the Veteran's seizure disorder including date of onset and diagnosis.

The examiner should review the medical evidence of record with attention to the service treatment records along with the medical history provided in the remand above.  The examiner is informed that two entry examination reports indicated normal lungs and chest and normal chest x-ray results.  Within a few weeks of entering active duty, the Veteran had a positive PPD test and chest x-ray examination revealed a 1 centimeter calcified density in the right upper lung lobe.  The diagnosis of the Medical Board was old pulmonary tuberculosis which existed prior to service and was not aggravated by service.  The Veteran was discharged as physically unsuitable for service; he was not hospitalized for any treatment of tuberculosis during service.

The examiner is to review the evidence of record and provide opinions on the following:

(a) Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the Veteran had a pulmonary tuberculosis that existed prior to his entry onto active duty?

(b) If the answer is yes, does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the preexisting pulmonary tuberculosis was not aggravated by service or that any increase in disability was due to the natural progression of the disease?

Please identify any such evidence with specificity.

The claims folder and a copy of this remand must be made available to and reviewed by the examiner.  In this respect, any relevant medical records contained in the Virtual VA eFolder must be made available to the examiner.

The examiner must provide a complete rationale for all conclusions reached.

If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

2.  Schedule the Veteran for the appropriate examination to determine the nature, extent, and etiology of any current bursitis of the right leg.  The examiner is to review the evidence of record with attention to the service treatment records which reveal that the Veteran was treated for cellulitis of the right hip area during service and provide opinions on the following:

(a) Does the Veteran have a current disability diagnosed as bursitis of the right leg?

(b) Is there any objective medical evidence to support the diagnosis of "bursitis" which is contained in the diagnoses and medical problems listed in the VA treatment records?

(c) Whether it is at least as likely as not that any current disability of the right leg, including bursitis, had its onset during active service, or is related to the cellulitis treated during service?

The claims folder and a copy of this remand must be made available to and reviewed by the examiner.  In this respect, any relevant medical records contained in the Virtual VA eFolder must be made available to the examiner.

The examiner must provide a complete rationale for all conclusions reached.

If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

3.  Following the above, readjudicate the Veteran's claims for service connection for pulmonary tuberculosis, bursitis of the right leg, and nonservice-connected pension benefits.  If the benefit sought on appeal remains denied, a Supplemental Statement of the Case should be issued, and the Veteran and his representative afforded an opportunity to respond.  Then, the case should be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2011).

_________________________________________________
M. E. LARKIN

Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2011).


judge_norm: VITO A CLEMENTI

text: This case is REMANDED for the foll

text:
Citation Nr: 1229000
Decision Date: 08/23/12    Archive Date: 08/30/12

DOCKET NO.  08-30 351	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland

THE ISSUES

1.  Entitlement to a total disability evaluation based on individual unemployability due to service-connected disability (TDIU).

2.  Entitlement to service connection for joint pain.

3.  Entitlement to service connection for a sinus condition.

4.  Entitlement to service connection for polycystic ovarian syndrome.

5.  Entitlement to service connection for gastroesophageal reflux disease (GERD).

6.  Entitlement to service connection for a skin condition on the left arm.

7.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypothyroidism, status post treatment for Grave's Disease.

8.  Entitlement to effective dates prior to April 30, 2002 and February 10, 2009, for the assignment of increased 50 percent evaluations for major depressive disorder, recurrent, with mood disorder.

REPRESENTATION

Veteran represented by:	Sean A. Ravin, Attorney at Law

ATTORNEY FOR THE BOARD

L. J. N. Driever

INTRODUCTION

The Veteran had active service from October 1988 to July 1992.

The claim of entitlement to a TDIU comes before the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The RO in Baltimore, Maryland certified this claim to the Board for appellate review.

A review of the Virtual VA paperless claims processing system reveals no documents pertinent to this claim that are not already of record.

The Board remanded this claim to the RO for additional action in June 2010.

In February 2011 and July 2011, the Veteran initiated an appeal of the RO's December 2010 Decision Review Officer Decision and October 2011 rating decision denying service connection for joint pain, a sinus condition, polycystic ovarian syndrome, GERD, and a skin condition on the left arm, and the reopening of a claim of entitlement to service connection for hypothyroidism, status post treatment for Grave's Disease, and increasing the evaluation assigned the Veteran's major depressive disorder, recurrent, with mood disorder to 50 percent, effective from April 30, 2002 to February 11, 2007, and from February 10, 2009.  The Board REMANDS these claims, and the Veteran's claim of entitlement to total rating, to the RO.

In written statements dated February 2011 and July 2011, the Veteran raised a claim of entitlement to a higher initial evaluation for her psychiatric disability.  The Board refers this matter to the RO for appropriate action.

REMAND

In its June 2010 Remand, the Board instructed the RO to assist the Veteran in the development of her claim by affording her a VA examination.  The purpose of the examination was to determine whether the Veteran's hypothyroidism and psychiatric disability are sufficiently severe as to preclude gainful employment.

The examination conducted is not adequate to decide the claim. The VA examiner found that because the Veteran was working for the health and human service department (had 15 years of work credited with the federal government) and missed only two weeks yearly due to major depression and hypothyroidism, she was only moderately impaired occupationally and not precluded from working.

However, the Veteran through counsel has reported that from March 2007 to September 2007, she was unemployable due to her service-connected disabilities; and from October 2007 to April 2010, she received disability benefits and worked part-time for BB&T Bank.  The Veteran argues that VA obtain records from the Social Security Administration (SSA) and wage and earnings statements from the Veteran's employers in support of this claim.

Records from SSA are already in the claims file and show that effective October 2007, the Veteran was disabled for within the SSA's law and regulation. However, there is no information indicating an end date for this award if applicable, and whether the Veteran is receiving such benefits.  There is also no relevant information, including wage and earnings statements, from BB&T bank and/or the federal government. Finally, there is no opinion of record addressing whether, from March 2007 to April 2010, the Veteran's service-connected disabilities prevented her from gainful employment.

In its August 2010 notice letter, the RO requested the Veteran to complete a written form identifying certain employment information, but the Veteran never responded.  The RO did not inform the Veteran that she is responsible for submitting such information to the Board.

In December 2010 and October 2011 rating decisions, the RO denied the Veteran service connection for joint pain, a sinus condition, polycystic ovarian syndrome, GERD and a skin condition on the left arm, and the reopening a claim of entitlement to service connection for hypothyroidism, status post treatment for Grave's Disease, and increased the initial evaluations assigned the Veteran's major depressive disorder, recurrent, with mood disorder to 50 percent, effective from April 30, 2002 to February 11, 2007, and from February 10, 2009.

The Veteran filed notices of disagreement in February 2011 and July 2011, including disagreement with the established effective dates of increased compensation. The RO has not issued a statement of the case in response.  38 C.F.R. �� 19.9, 20.200, 20.201 (2011); Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996).

This case is REMANDED for the following action:

1.  Inform the Veteran that she is responsible for submitting employment information in support of her assertion that she was unemployable due to service-connected disabilities at certain points during the course of this appeal.

2.  Contact SSA and obtain an updated report of award/receipt of benefits, TO INCLUDE WHETHER THE VETERAN REMAINS ENTITLED TO SSA BENEFITS AND IF NOT ENTITLED, THEIR END DATE.

3.  After obtaining any necessary authorization, secure and associate with the claims file the Veteran's wage and earnings statements from March 2007 to April 2010 or alternative employment information from BB&T bank and the Veteran's current place of employment (federal government).

4.  Once the previously noted information is of record, obtain a medical opinion with rationale addressing whether at any point from March 2007 to April 2010, the Veteran's service-connected hypothyroidism and psychiatric disability prevented the Veteran from gainful employment.

5.  Review the opinion to ensure that it complies with these remand instructions and, if not, return it to the examiner for correction.  If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. � 4.2.

6.  Furnish the Veteran and her representative a statement of the case addressing the claims of entitlement to service connection for joint pain, a sinus condition, polycystic ovarian syndrome, GERD, and a skin condition on the left arm, whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypothyroidism, status post treatment for Grave's Disease, and entitlement to effective dates prior to April 30, 2002 and February 10, 2009, for the assignment of increased 50 percent evaluations for major depressive disorder, recurrent, with mood disorder.

7.  Readjudicate all claims properly perfected for appellate review.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, issue a supplemental statement of the case.  Thereafter, subject to current appellate procedure, return this case to the Board for further consideration.

The Veteran has the right to submit additional evidence and argument on the remanded claims.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2011).

_________________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2011).


judge_norm: JAMES L MARCH

text:
Citation Nr: 1231000
Decision Date: 09/10/12    Archive Date: 09/19/12

DOCKET NO.  10-19 269	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming

THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for bilateral hearing loss disability.

3.  Entitlement to service connection for bladder carcinoma, to include as due to herbicide exposure.

4.  Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to herbicide exposure.

5.  Entitlement to service connection for squamous cell carcinoma of the anus, to include as due to herbicide exposure.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

S. Mishalanie, Counsel

INTRODUCTION

The Veteran served on active duty from July 1968 to July 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming.

In February 2011, the Veteran testified before a Veterans Law Judge (VLJ) at the RO; a transcript of the hearing is of record.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.

REMAND

As noted above, in February 2011, the Veteran testified before a VLJ of the Board; however, the VLJ who had conducted that hearing is no longer employed at the Board.  Pursuant to 38 C.F.R. � 20.707, the Veteran has a right to have the VLJ who conducted the hearing participate in making the final determination of the claim.  Accordingly, the Board offered the Veteran an opportunity for another hearing.  In July 2012, he indicated that he wanted to appear at hearing before a VLJ of the Board at his local RO (Travel Board hearing).

Therefore, remand is necessary so that the Veteran may be scheduled for a Travel Board hearing before a Veterans Law Judge.

Accordingly, the case is REMANDED for the following action:

The appellant should be scheduled for a Travel Board hearing before a Veterans Law Judge at the RO.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2011).

_________________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2011).