Citation Nr: 1217136 Decision Date: 05/11/12 Archive Date: 05/24/12 DOCKET NO. 06-13 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for degenerative joint disease (DJD) of the bilateral lower extremities, to include any neurologic symptomatology such as myalgia or arthralgia (claimed as arthritis of the knees and legs). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which reopened a claim for and denied service connection to DJD of the bilateral knees and legs. The Veteran timely appealed that decision. This case was before the Board in September 2008 when it was remanded for further development. It was returned to the Board in July 2009, at which time the Board reopened the service connection claim and remanded the reopened claim for further development. The claim was again returned to the Board in December 2010 when it was again remanded for further development. That development having been completed, the case has again been returned to the Board for further appellate review at this time. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In this case, the Veteran has been service connected for his bilateral cold injuries of his bilateral feet. Review of his claims file demonstrates that he has also been diagnosed with diabetes, but is not service connected for that disorder. The Veteran has neuropathy in his bilateral lower extremities as well. In the Veteran's October 1967 separation examination, he was shown to have "myalgia of the legs in damp weather, no arthritis, [no disease found]." He underwent VA examination for his bilateral lower extremity disorder in July 2010. While that examination addressed the Veteran's degenerative arthritis, that opinion did not address the notation of myalgia at that time, which could potentially be arthralgia or some other neurologic disorder. Thus, the Board finds that the claim needs to be remanded in order for a VA examination to be afforded to the Veteran which addresses that theory of entitlement. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Beckley VA Medical Center, or any other VA medical facility that may have treated the Veteran, since September 2011 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for bilateral lower extremities which is not already of record. After securing the necessary release forms, attempt to obtain and associate those identified private treatment records with the claims file. If those identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be so notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for VA examination to determine whether his claimed bilateral lower extremities disorder is related to military service or to any of his service-connected disabilities. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary, including x-rays, should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner is asked to diagnose ALL bilateral lower extremity disorders found, including myalgia, arthralgia, neuropathy, or any other disorder found. The examiner is then asked to discuss the following: (a) Whether any bilateral lower extremity disorder are symptoms of the Veteran's service-connected cold injury residuals of his bilateral feet-specifically, the Board asks whether any neuropathy demonstrated in the Veteran's lower extremities are symptoms of the Veteran's cold injuries or diabetic conditions. (b) Whether any bilateral lower extremity disorder found is more likely, less likely or at least as likely as not (50 percent or greater probability) related to military service, to include the April 1966 treatment for his legs with the subsequent profile and the notation of myalgia of the legs on his October 1967 separation examination. (c) Whether any bilateral lower extremity disorder is due to or caused by the Veteran's cold injuries. (d) Whether any bilateral lower extremity disorder is aggravated beyond the normal progression of that disease by (e.g., made permanently worse by) the Veteran's bilateral cold injury residuals. If aggravation is demonstrated, the examiner should state a baseline level of disability and quantify the amount of aggravation to the extent possible, considering earlier medical evidence of record as a point of comparison, and also considering the Veteran's statements as to current and past symptoms. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Following the above development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of service connection for DJD of the bilateral lower extremities, to include any neurologic symptomatology such as myalgia or arthralgia. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant 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. 2011). _________________________________________________ CHERYL L. MASON 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) (2011).