Citation Nr: 1311912 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 03-00 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for bilateral shin splints, to include as secondary to service-connected chondromalacia patella of the bilateral knees. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from December 1983 to March 1987 and in the Army National Guard from March 1987 to March 1992. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a February 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified in support of this claim during a video-conference hearing held before a Veterans Law Judge (VLJ) in September 2011. As the Board indicated by letter dated in January 2013, that VLJ is no longer a Board employee, a fact that entitled the Veteran to testify at another hearing if he so chose. In its letter, the Board provided the Veteran 30 days to request such a hearing, but the Veteran did not respond. The Board therefore assumes he is not interested in doing so and deems this appeal ready for review. In January 2012, the Board remanded this claim to the RO for additional action. Since then, no additional pertinent documents have been associated with the Virtual VA paperless claims processing system. The Board REMANDS this appeal to the RO via the Appeals Management Center in Washington, D.C. REMAND Prior to adjudicating the claim for service connection for bilateral shin splints, additional development is necessary. In February 2012, the RO assisted the Veteran by affording him a VA examination, during which an examiner addressed the etiology of the Veteran's bilateral shin splints. The examiner ruled out a relationship between the shin splints and the Veteran's active service on the basis that, although the Veteran claimed to have the condition as a result of service activity, a bone scan conducted in 2003 showed uptake in the knees, not either tibia. This opinion is inadequate to decide this claim as it is based on a faulty premise or an inaccurate account of the medical record. As the Veteran points out in a written statement dated in July 2012, the 2003 bone scan to which the examiner refers shows uptake not only in the patellar regions, but also anteriorly within the proximal tibiae. Therefore, an additional examination is required. On remand, the Veteran should also be sent a VCAA letter addressing secondary service connection, and any recent VA treatment records should be obtained. Accordingly, the Board REMANDS this claim for the following action: 1. Send the Veteran a VCAA letter addressing the claim for service connection for shin splints, to include as secondary to service-connected chondromalacia patella of the bilateral knees. See 38 C.F.R. § 3.310. 2. Make arrangements to obtain a copy of the Veteran's treatment records from the New Orleans VA Medical Center, dated since April 2009. 3. Thereafter, schedule the Veteran for an appropriate VA examination for shin splints. The claims file must be made available to, and reviewed by, the examiner. The examiner should determine whether the Veteran currently has shin splints or has had shin splints (or any other shin disorder) at any time since August 1997. All appropriate testing, to include a bone scan if indicated, should be conducted. The examiner also should provide an opinion as to the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that a shin disorder, including shin splints, diagnosed at any time since August 1997, had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should consider the service treatment records documenting a diagnosis of shin splints; the post-service private treatment records dated in December 2002 reflecting complaints of pain in both tibiae with exercise, findings of pain to palpation, and a diagnosis of shin splints; and the bone scan dated in January 2003 showing increased uptake of tracer activity anteriorly within the proximal tibiae. (b) Whether it is at least as likely as not (50 percent or greater probability) that a shin disorder, including shin splints, diagnosed at any time since August 1997, was caused by the Veteran's chondromalacia patella of the bilateral knees. (c) Whether it is at least as likely as not (50 percent or greater probability) that a shin disorder, including shin splints, diagnosed at any time since August 1997, was aggravated by the Veteran's chondromalacia patella of the bilateral knees. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 5. Finally, readjudicate the claim on appeal. If the benefit remains denied, issue the Veteran and his representative a Supplemental Statement of the Case (SSOC) and allow for a reasonable period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2012). _________________________________________________ P. M. DILORENZO 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) (2012).