Citation Nr: 1139907 Decision Date: 10/27/11 Archive Date: 11/07/11 DOCKET NO. 09-24 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection to a bilateral leg disability manifested by chronic pain and immobility, secondary to a service-connected low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1987 to September 1987 and from June 1998 to July 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arizona. The Veteran testified at a Board hearing at the RO in August 2010 before the undersigned Acting Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. 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 has not been afforded a VA examination to clearly address the Veteran's assertions regarding a bilateral leg disability. The record shows complaints of pain in the bilateral legs in previous VA examinations, however no examination provided a diagnosis for the Veteran's complaints. Additionally, the previous VA examinations addressed only the level of severity of the Veteran's low back disability and did not provide an opinion regarding any relationship between the Veteran's low back disability and his complaints of pain in the bilateral legs. In light of the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board finds that an examination is required. McLendon provides that in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 VA to make a decision on the claim. The standards of McLendon are met in this case. The Veteran provided evidence of a current disability, specifically documented complaints of chronic pain and immobility of the bilateral legs. The Veteran's testimony also provides an indication that the recurrent symptoms of a disability may be associated with the Veteran's service-connected low back disability. Based on this evidence, the Board finds that a VA examination is necessary. The Veteran also testified during his August 2010 Board hearing that he had received treatment for his bilateral leg disability from a private physician. Review of the record does not show that these records are associated with the claims file. When VA is put on notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). Accordingly, after procuring authorization from the Veteran, the RO must contact the private physician and obtain private medical treatment records pertaining to his treatment of the Veteran's bilateral leg disability. Accordingly, the case is REMANDED for the following action: 1. Contact the veteran, and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Specifically, in contacting the Veteran, indicate awareness of the existence of the private records documenting treatment by Dr. Connelly at the Free World Medical Center for his bilateral leg disability as noted in the August 2010 Board hearing transcript, and request that the Veteran provide those records or authorization such that the RO may obtain them. If authorization is provided, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Document all attempts to secure this evidence in the claims file. 2. Once any additional records are received, schedule the Veteran for a VA examination to ascertain the nature and etiology of any bilateral leg disability. The relevant documents in the claims file, to include service treatment records, should be made available to and reviewed by the examiner in connection with the examination. Any tests deemed medically advisable should be accomplished. The examiner should provide a diagnosis for any bilateral leg disability manifested by pain and immobility of the legs and clearly address the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that any bilateral leg disability is proximately due to or caused by his service-connected low back disability? b) Is it at least as likely as not (a 50% or higher degree of probability) that any bilateral leg disability has been aggravated by his service-connected low back disability? If so, please report the baseline level of severity of the bilateral leg disability before the onset of aggravation and the current level of severity of the bilateral leg disability. A complete rationale must be provided for any opinion offered. 3. After completion of the above and any other development the RO/AMC should deem necessary, the RO/AMC should review the expanded record and readjudicate the claim. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2010). 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. 2010). _________________________________________________ JOHN Z. JONES 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).