Citation Nr: 18124006
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-26 397
DATE:	August 3, 2018
REMANDED
Entitlement to service connection for a back disorder is remanded.
Entitlement to service connection for a left leg disorder is remanded.
REASONS FOR REMAND
The Veteran served on active duty in the United States Army from March 1945 to November 1945 and from December 1945 to December 1946.  
By correspondence received July 2016, the Veteran withdrew his prior request for a hearing.  
The Board does not find that it currently has jurisdiction over a claim of entitlement to an increased rating for exposure keratopathy and macular degeneration and dry eye syndrome, left eye associated with paralysis, left facial nerve.  In January 2015, the RO granted service connection for “exposure keratopathy and macular degeneration, left eye associated with paralysis, left facial nerve” and assigned an initial rating of 20 percent.  This claim was not addressed in the Veteran’s January 2015 notice of disagreement.  In June 2016, the RO granted service connection for a dry eye disorder and as opposed to separately identifying this additional service-connected left eye disability, it simply re-characterized the Veteran’s service-connected left eye disorder as “exposure keratopathy and macular degeneration and dry eye syndrome, left eye associated with paralysis, left facial nerve” (emphasis added) and continued the 20 percent rating.  That decision was not appealed and is final.  The increased rating claim was raised in the June 2018 appellate brief, but that does not constitute a perfected appeal where, as here, the claim has not been the subject of a notice of disagreement, a VA Form 9, and/or a VA Form 8.  
Based on the foregoing, the Board also no longer has jurisdiction over a claim of entitlement to service connection for dry eye syndrome, as service connection was granted for this disability in the previously referenced rating decision of June 2016.  
1. Entitlement to service connection for a back disorder is remanded.
A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006).  See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).
These elements are satisfied with regard to the claim of entitlement to service connection for a back disorder.  Regarding the first element, a November 2014 VA “Active Problems” record (received 1/16/15, page 1 of 18) indicates back pain.  Regarding the second element, service treatment records between June 1946 and August 1946 indicate a motorcycle accident in which the Veteran fractured his skull.  Regarding the third element, while a back disorder is not specifically indicated in the Veteran’s service treatment records, there is an indication that a current back disorder could be related to an in-service motorcycle accident.  Regarding the fourth element, there is insufficient evidence of record by which the Board can make a decision.  As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion.  
2. Entitlement to service connection for a left leg disorder is remanded.
The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for a left leg disorder.  Regarding the first element, an October 2004 VA medical record (received 11/8/14, pages 17–18 of 184) describes “weakness on left leg” and the use of medication “as needed for leg cramps.”  Regarding the second element, the Veteran argues that this is the result of his back disorder.  Regarding the third and fourth elements, there is an indication that a left leg disorder could be related to a back disorder, but there is insufficient evidence of record by which the Board can make a decision.  As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion.
VA treatment records to November 19, 2014, have been associated with the claims file.  Therefore, the RO should obtain all relevant VA treatment records dated from November 20, 2014, to the present before the remaining issues are decided on the merits.  Bell v. Derwinski, 2 Vet. App. 611 (1992).
The matters are REMANDED for the following action:
1. Associate with the claims folder all records of the Veteran’s VA treatment from November 20, 2014, to the present.  If no records are available, the claims folder must indicate this fact.  Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file.
2. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed back disorder or left leg disorder.  The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: 
(a.) Whether the Veteran has any current or previously-diagnosed back disorder or left leg disorder; 
(b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed back disorder was incurred in the Veteran’s service, including but not limited to as a result of an in-service motorcycle accident; 
(c.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed left leg disorder was incurred in the Veteran’s service, including but not limited to as a result of an in-service motorcycle accident; and 
(d.) Whether the Veteran has any current or previously-diagnosed left leg disorder that (i) is proximately due to a back disorder or (ii) was aggravated by a back disorder.  
In rendering these opinions, the examiner should consider the medical records dated from June 1946 to August 1946, describing the Veteran’s in-service motorcycle accident and his subsequent treatment.  
The examiner should provide a complete rationale for any opinions offered.  If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so.
 
Michael J. Skaltsounis
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Cannon, Associate Counsel

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