Citation Nr: 1034728 Decision Date: 09/15/10 Archive Date: 09/21/10 DOCKET NO. 04-15 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for myoglobinuria/rhabdomyolysis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from April 1985 to September 1989. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied a claim of entitlement to service connection for myoglobinuria/rhabdomyolysis. On February 3, 2005, the Board denied the claim of entitlement to service connection for myoglobinuria/rhabdomyolysis. In so doing, the Board noted that the Veteran failed to report for a Board hearing scheduled in November 2004, and had failed to show good cause for his failure to report. The Board had previously remanded the case in July 2004 to accommodate the Veteran's request for a hearing before the Board. In March 2005, the Veteran filed a motion for reconsideration of the Board's decision on the ground that he was not afforded a hearing before the Board. He submitted documentation establishing that he was hospitalized on the date of the hearing. In August 2005, the Board ruled that its February 2005 decision would be vacated if the Veteran reported for a newly scheduled Board hearing. In May 2006, the Veteran appeared and testified before the undersigned. In October 2006, the Veteran's Law Judge who decided the case on February 3, 2005, vacated the February 3, 2005, decision on the basis that the Veteran was denied his due process rights at the time of that decision. 38 C.F.R. § 20.904(a). Also in October 2006, the Board denied the Veteran's claim for service connection for myoglobinuria/rhabdomyolysis. In August 2008, the Court of Appeals for Veterans Claims (Court) issued an Order granting a Joint Motion of Remand of the parties, and thereby vacating and remanding this matter to the Board for any necessary development and further adjudication. 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 At issue is whether the Veteran has post-service myoglobinuria/rhabdomyolysis related to a documented incident of the condition during active service. The Veteran has described continuing symptoms of the disorder from active service forward, to include upper body muscle soreness and discolored urine upon significant physical exertion; however there is no medical evidence of the condition after discharge from active service. The most recent medical evidence of record is an August 2002 VA examination report. The Veteran experienced a heart attack in November 2004; the corresponding records of private hospitalization may contain information relevant to whether the Veteran has experienced post- service myoglobinuria/rhabdomyolysis or has any residuals thereof, and thus should be sought. See 38 U.S.C.A. § 5103A(a)- (c); 38 C.F.R. § 3.159(c)(1)-(3). Additionally, at the Veteran's Board hearing in October 2006, the Veteran was advised by his representative that should he have any further episodes of myoglobinuria/rhabdomyolysis, he should seek VA treatment at the time of the episode so that the signs and symptoms may be observed and recorded by a medical professional. The representative indicated to the undersigned that the VA records of ongoing treatment include myoglobinuria/rhabdomyolysis among the Veteran's listed illnesses and diagnoses. These records of VA treatment may therefore be relevant and should be obtained and associated with the claims file. 38 U.S.C.A. § 5103A(a)-(c); 38 C.F.R. § 3.159(c)(1)-(3); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thereafter, a new VA examination should be scheduled for the purpose of determining whether there is sufficient evidence to establish whether the Veteran has current myoglobinuria/rhabdomyolysis that is related to active service. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all records of VA and non-VA health care providers who have provided treatment that may be relevant to whether he has experienced post-service myoglobinuria/rhabdomyolysis. (a) After obtaining any appropriate authorizations for release of medical information, the RO/AMC should obtain records from each health care provider the Veteran identifies. (b) The records sought must include all records of VA general medical and other relevant treatment from 2002 forward, which were said by the Veteran's representative at the Veteran's May 2006 Board hearing to include myoglobinuria/rhabdomyolysis among the listed diagnoses and illnesses. (c) The records sought must include private records of treatment and hospitalization for a heart attack in November 2004. (d) The Veteran should also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO. 2. Once all available medical records have been received, make arrangements with the appropriate VA medical facility for the Veteran to be afforded an appropriate VA examination to determine whether it is at least as likely as not that the Veteran has current or chronically recurring myoglobinuria/rhabdomyolysis that began during service or is related to any incident of service. (a) The RO/AMC should send the claims file to the examiner for review, and the clinician should indicate that the claims file was reviewed, to include private records of treatment for a heart attack in November 2004 and ongoing records of VA treatment that are said to include myoglobinuria/rhabdomyolysis among the listed illnesses and diagnoses. (b) If there is a medical or clinical basis for discounting the credibility or reliability of the Veteran's assertions as to experiencing post-service symptoms of myoglobinuria/rhabdomyolysis, the examiner must so state. (c) The examiner is requested to provide a complete rationale for his or her opinion, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. 3. Then readjudicate the issue on appeal. If the benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. 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. 2009). _________________________________________________ STEVEN D. REISS 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) (2009).