Citation Nr: 1754211	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  11-04 718	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1.  Entitlement to service connection for a right lower extremity disorder (other than residuals of a stress fracture of the right lower leg), to include lymphedema/lymphangitis.

2.  Entitlement to service connection for a left lower extremity disorder (originally claimed as a left foot disorder), to include lymphedema/lymphangitis.


REPRESENTATION

Appellant represented by:	Michael J. Kelley, Attorney at Law


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

F. Yankey Counsel


INTRODUCTION

The Veteran served on active duty from August 1990 to March 1995.  He had service in the National Guard from April 1, 1995 to November 1, 1995, and service in the United States Army Reserve (USAR) from November 2, 1995 to October 30, 1998.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

The Veteran testified before the undersigned at a December 2015 videoconference hearing.  The hearing transcript is of record.  

In February 2017, the Board remanded the case for further development by the originating agency.  The case has been returned to the Board for further appellate action.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required on his part.


REMAND

Unfortunately, another remand is required in this case.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claims so that he is afforded every possible consideration.

The Veteran contends that he has current bilateral lower leg disorders, claimed as lymphedema/lymphangitis, that had their onset during military service, and that he has continued to have bilateral lower extremity swelling since discharge.

Service treatment records show that aside from having received treatment for several stress fractures of the right foot, a condition for which service connection has already been granted, the Veteran was seen for bilateral shin pain in November 1972, after he ran three to four miles the previous day.  The examining clinician made an assessment of moderate tenderness of the left lower tibia/ankle area with mild swelling.  The Veteran's right tibia/ankle was noted to have been non-tender.  The Veteran was seen for bilateral shin splints in May 1993.  In May and June 1993, the Veteran complained of numbness of the right foot.  The examining clinicians made assessments of bilateral shin splints and overuse syndrome of the right lower extremity, respectively.  A July 1997 USAR examination report reflects that the Veteran's lower extremities were evaluated as "normal."  The Veteran indicated that he was in "good health."  On an accompanying Report of Medical History, he related that he had fractured his right lower leg.

Post-service treatment records show that he was seen in August 2007 at the VA Medical Center in New York for painless swelling in the left calf and ankle.  He had a Doppler, which was negative for deep venous thrombosis (DVT) and an abdominal computed tomography (CT) scan, which was negative except for kidney stones (treated with ureteroscopy).  He was then seen in November 2008 and complained of swelling for one year.  He was diagnosed with lymphangitis in September of 2009 at Charlton Memorial Hospital.  May 2010 treatment records from the VA Medical Center in Providence, Rhode Island, show that the Veteran had a history of chronic distal left lower extremity lymphedema (made over 15-20 years prior) with recurrent cellulitis.  It was also noted that the cause of the lymphedema had never been determined, but the Veteran reported that it started prior to his military service.  Treatment records from the VA Medical Centers in Buffalo, Rochester, Providence and Boston dated from 2008 to 2017 show that the Veteran has been treated for pain and swelling in the lower extremities, and that he has been treated for cellulitis of the lower extremities.

During a July 2010 VA examination, the Veteran reported a history of chronic swelling of the left leg and occasional warmth and pain during service, and that he had sustained several stress fractures to the right leg.  The examiner diagnosed, in pertinent part, lymphedema/lymphangitis.  However, the examiner did not provide an opinion as to the etiology of the diagnosis.  See July 2010 VA examination report.

In accordance with the Board's February 2017 remand, the Veteran was afforded a VA examination in May 2017 and the examiner provided an opinion in June 2017.  
The May 2017 VA examiner opined that the Veteran's diagnosed bilateral lymphedema/lymphangitis did not originate during service and is not due to, etiologically related to, the result of, or aggravated by the service-connected stress fracture of the right leg.  His rationale was that it was approximately 10 years after the Veteran was out of service that he had his first issue with swelling.  In rendering his opinion, the examiner noted that service treatment records show that the Veteran had a fracture of his right lower leg and was casted.  In August 1991, he had the right lower leg cast removed and was noted to have no swelling or tenderness.  His x-ray was negative at that time.  The examiner also noted that lymphangitis is inflammation of lymphatic channels due to infectious or noninfectious causes.  Potential pathogens include bacteria, mycobacteria, viruses, fungi, and parasites.  Lymphangitis most commonly develops after cutaneous inoculation of microorganisms into the lymphatic vessels through a skin wound or as a complication of a distal infection.  Lymphangitis can occur in the setting of normal lymphatic channels with acute infection, damaged lymphatic channels (i.e. after surgical procedure, malignancy, radiation), or anatomic abnormalities (obstruction of channels).  Lymphatic damage and anatomic abnormalities can result in tissue protein and fluid accumulation, leading to nonpitting lymphedema with induration and predisposing to invasion of microorganisms.  He noted further that lymphedema is defined as accumulation of fluid and fibroadipose tissues due to disruption of lymphatic flow.  Primary lymphedema is caused by an inherent malfunction of the lymph-carrying channel, in which no direct outside cause can be found.  Secondary lymphedema is caused by an outside force, such as tumors, scar tissue after radiation, or removal of lymph nodes, which results in dysfunction of the lymph-carrying channels.

Though the examiner gave a thorough explanation of what lymphedema and lymphangitis are and how the disorders develop, the examiner did not give an adequate explanation for why the Veteran's current lymphedema and lymphangitis are not related to an injury or disease in service.  In this regard, the examiner essentially opined that as there was no evidence of lymphedema or lymphangitis at the time of the Veteran's discharge and for many years after service, his current bilateral lymphedema/lymphangitis is not related to service or his service-connected stress fracture of the right leg.  However, this position is not in accord with the law, regulations and court decisions.  It is symptoms and not treatment that must be considered when rendering an opinion as to the etiology between a current condition and events in service.  Additionally, service connection is possible for diseases first identified after service.  38 C.F.R. § 3.303(d) (2017).  The June 2017 examiner did not provide an adequate opinion as to whether the lower extremity problems identified after service are related to a disease or injury in service or to the Veteran's reported continuous symptomatology.  The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  The Board notes that the VA examiner did not consider the Veteran's reports of continuity of symptomology for leg problems following service.  

The Board also notes that the June 2017 examiner did not consider the evidence noted above of complaints and treatment for shin pain and tenderness and numbness in both lower legs during service, or the Veteran's reports, made during his July 2010 VA examination, of chronic swelling of the left leg and occasional warmth and pain during service.  The examiner was specifically requested to comment on the service treatment records in the Board's February 2017 remand directives.  
See February 2017 Board remand.  Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App 268 (1998).

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  To be adequate, an examination must take into account an accurate history.  Nieves-Rodriguez v. Nicholson, 22 Vet.App. 295 (2008).  As the June 2017 examiner did not consider all of the Veteran's history or complaints, his negative opinion is also inadequate for rating purposes.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007).

The Veteran is competent to report the onset and nature of his bilateral leg problems.  The Veteran's reports provide competent and credible evidence of a bilateral leg disability during active military duty and a continuity of symptoms since.  

As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's current bilateral lower leg disabilities (other than residuals of stress fractures of the right leg) is necessary.  See 38 C.F.R. § 4.2 (2017).  In rendering the new opinion, the examiner should consider the Veteran's statements regarding the occurrence of his lower extremity problems, in addition to his statements regarding the continuity of symptomatology.  Dalton v. Nicholson, 21 Vet. App. 23 (2007). 

The appellant is advised that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of his failure to report for a VA examination without good cause may include denial of the claim.  See 38 C.F.R. §§ 3.158 and 3.655 (2017). 

Accordingly, the case is REMANDED for the following action:

1.  Updated treatment records should be obtained and added to the claims folder/efolder.

2.  Following completion of the above, afford the Veteran an appropriate VA examination to determine the nature and etiology of any currently present bilateral lower leg disorders (other than residuals of stress fractures of the right leg), to specifically include lymphedema/lymphangitis.  The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum.  Any indicated studies should be performed. 

The examiner is advised that service connection has already been granted for residuals of stress fractures of the right lower leg.  Thus, the current claim for service connection for a right lower leg disorder is for one other than residuals of stress fractures of the right leg.

The examiner should provide an opinion as to whether any currently diagnosed right and left lower leg disorders (other than residuals of stress fractures of the right leg), to include, but not limited to, lymphedema/lymphangitis, are at least as likely as not (50 percent probability or greater), etiologically related to, or had their onset during active military service.

The examiner should also provide an opinion as to whether any currently diagnosed right and left lower leg disorders (other than residuals of stress fractures of the right leg), to include, but not limited to, lymphedema/lymphangitis, are at least as likely as not (50 percent probability or greater), proximately due to, the result of, or aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected residuals of stress fractures of the right leg.

In responding to this question, the examiner must comment on the following service treatment records (STRs): (i) November 1972 STR reflecting that the Veteran had complained of bilateral shin pain after he ran three (3) to four (4) miles the previous day; an assessment of moderate tenderness of left lower tibia/ankle area with mild swelling was entered.  The Veteran's right tibia/ankle was also noted to have been non-tender; (ii) May 1993 and June 1993 STRs reflecting that the Veteran had complained of bilateral shin pain and numbness of the right foot; assessments of bilateral shin splints and overuse syndrome of the right lower extremity were entered, respectively; (iii) July 1997 USAR examination report reflecting that the Veteran's lower extremities were evaluated as "normal."  The Veteran indicated that he was in "good health;" and, (iv) July 1997 Report of Medical History disclosing that the Veteran reported having fractured his right lower leg.

The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions.  If his reports are discounted, the examiner should provide a reason for doing so.  

The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion.

A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. 

If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided.

3.  Then, the AOJ should readjudicate the issues on appeal.  If any claim is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and afforded the opportunity to respond thereto.  Thereafter, the case should be returned to the Board for further appellate review, if in order.

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).

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. §§ 5109B, 7112 (2014).



_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2014), 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) (2017).
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