Citation Nr: 1122980 Decision Date: 06/15/11 Archive Date: 06/28/11 DOCKET NO. 10-23 718 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a leg disorder, other than osteoarthritis of the knee. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Harold A. Beach INTRODUCTION The Veteran served on active duty from April 1974 to August 1974, November 1974 to April 1977, and December 1980 to February 1981. This matter came to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the RO. In August 2005, the Board confirmed and continued an RO decision which had denied entitlement to service connection for a disorder manifested by joint and bone pain, claimed as secondary to her service-connected anemia and/or arrhythmia. Such bone and joint pain included osteoarthritis of the knees. The Veteran was notified of that decision, as well as her appellate rights; however, a notice of disagreement was not received with which to initiate an appeal. Therefore, that decision became final under the law and regulations then in effect. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2005). In November 2008, the Veteran claimed entitlement to service connection for an unspecified leg disorder. In its January 2009 decision, following a de novo review of the record, the RO denied that claim. The RO did not consider, specifically, the possibility of entitlement to service connection for osteoarthritis of the knees. Therefore, the Board has characterized the issue in the current appeal as entitlement to service connection for a bilateral leg disorder, other than osteoarthritis of the knees. In so doing, the Board will not consider its August 2005 decision or any attendant issues of finality. However, this does not preclude the Veteran from filing an application to reopen a claim of entitlement to service connection for joint and bone pain (including osteoarthritis of the knees), claimed as secondary to her service-connected anemia and/or arrhythmia. 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 contends that she has severe pain and stiffness in her legs which was first manifested at the time of her separation from service. In the alternative, she contends that it is the result of or has chronically been worsened by her service-connected heart disease and anemia. Therefore, she maintains that service connection for a bilateral leg disorder is warranted either on a direct or secondary basis. The Veteran's service-connected heart disease is characterized as intermittent cardiac arrhythmia with suspected premature ventricular contractions and hypertensive heart disease. It is evaluated as 30 percent disabling. The Veteran also has anemia, evaluated as 30 percent disabling. During her January 1977 service separation examination, the Veteran responded in the affirmative, when asked if she then had, or had ever had, swollen or painful joints. The examiner reported that those complaints referred to right leg pain which had been treated with medications at Tinker Air Force Base in 1976. During treatment at a military medical facility in July 1978, the Veteran complained of left leg pain. No diagnosis was reported. In July 1992, during treatment at the Comanche County Memorial Hospital, the Veteran was treated for a hypothyroid disorder. At that time, she complained of leg cramps and right knee discomfort. In August 2000, the Veteran was treated by VA for multinodular goiter, possible depression, and possible thyroxicosis. At that time, she complained of upper and lower extremity numbness and weakness. From January to June 2004, the Veteran was treated by a VA Rheumatologist for a Baker's cyst behind her right knee and osteoarthritis of both knees. In June 2004, it was also noted that she had probable fibromyalgia, manifested by a generalized pain with any type of touch. In March 2005, the Veteran was examined by VA to determine the nature and etiology of any bone or joint abnormality found to be present. She reported constant pain in her joints, mostly in her lower back, legs, and knees. The VA examiner noted that the Veteran had been seen in the VA Arthritis Clinic in March 2003. At that time, the pain was not, specifically, focused in her joints, and the doctors had the impression that the Veteran was talking about muscle pain. The report of that treatment has not been associated with the claims folder. The assessment had been that the pain was all over her body with no joint swelling to suggest rheumatoid arthritis. Some symptoms were reportedly suggestive of fibromyalgia. It was noted that possibly, some component of her symptoms could be related to one of her general medical problems, such as hypothyroidism or hepatitis C. Following the March 2005 VA examination, the examiner's impression was degenerative joint disease of the lumbar spine and knees with limitation of function because of mild to moderate pain. After reviewing all of the available medical literature, the examiner found no evidence that thalassemia minor or thalassemia trait could lead to osteoarthritis or that anemia or a heart condition could lead to osteoarthritis or thyroid disorders. Therefore, the examiner opined that the Veteran's osteoarthritis in her lower back and knees and her thyroid disorder were not related or secondary to her service-connected anemia or cardiac arrhythmia. During VA treatment in April 2010, it was noted that the Veteran had somatic symptoms of leg discomfort and aches and pains. To date, the Veteran has not been examined by VA to determine the nature and etiology of any lower extremity disorder other than osteoarthritis of the knees. In January 2011, the Veteran requested that her case be remanded for such an examination. In reviewing the record, the Board notes that the Veteran is represented by the California Department of Veterans Affairs. However, she currently resides in Oklahoma. Due to time and distance, such an arrangement may not afford her the most effective representation. In light of the foregoing, additional development of the record is warranted prior to further consideration by the Board. Accordingly, the case is REMANDED for the following actions: 1. Inform the Veteran of her options for representation and ask if she desires to appoint a different representative or otherwise exercise her options. 2. Request that the Veteran identify all VA and non-VA health care providers who have treated her for leg pain since service. In so doing, request that she provide the dates and locations of that treatment. Then request the records of such treatment directly from the health care providers identified by the Veteran. This must include, but is not limited to the report of her treatment at the VA Arthritis Clinic in March 2003. A negative response or a failure to respond to any request must be noted in writing and associated with the claims folder. If the records are held by an agency of the federal government, efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). If the records are held by an entity other than the federal government, and the requested records are unavailable, notify the Veteran and her representative (if she has one) in accordance with the provisions of 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(e). 3. When the actions in parts 1 and 2 have been completed, schedule the Veteran for a rheumatology examination to determine the nature and extent of any leg disorder found to be present. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If a disorder(s) of either leg is diagnosed, the examiner must identify and explain the elements supporting each diagnosis. If a right leg disorder is found, the examiner must render an opinion, with complete rationale, as to whether it is at least as likely as not (50/50 chance) that such disorder is related to the Veteran's complaints of right leg pain, noted on her 1977 service separation examination. The examiner must also render an opinion, with complete rationale, as to whether it is at least as likely as not that any disorder in either leg is proximately due to or has been chronically worsened by the Veteran's service-connected anemia or intermittent cardiac arrhythmia with suspected premature ventricular contractions and hypertensive heart disease. The Veteran is advised that it is her responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2010). In the event that the Veteran does not report for the aforementioned examination, a copy of the notice informing the Veteran of the date and time of the examination must be associated with the claims folder. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. When the actions requested in parts 1, 2, and 3have been completed, undertake any other indicated development. Then readjudicate the issue of entitlement to service connection for a leg disorder, other than osteoarthritis of the knee. If the benefit sought on appeal are not granted to the Veteran's satisfaction, she and her representative (if she has one) must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless she is notified to do so. However, she is advised that she has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. 2007). _________________________________________________ L. M. BARNARD 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) (2010).