Citation Nr: 1327169 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 11-14 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for neurological condition of the bilateral lower extremities, excluding service-connected left thigh paresthesias and right thigh L4 dermatomal radiculopathy, but including as secondary to lumbar spine disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Peters, Associate Counsel REMAND The Veteran had active duty service from July 1974 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a neurological condition of the bilateral lower extremities. The Veteran timely appealed that decision. 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. The Veteran last underwent a VA examination of his bilateral lower extremity neurological conditions in October 2008. At that time, the Veteran was diagnosed with bilateral L4 radicular symptoms with radiating pain to the posterior thigh, as well as "meralgia paresthetica, more likely than not secondary to obesity; unrelated to the service-connected low back condition." The examiner then quoted what appears to be medical literature which supported his conclusion with regards to the meralgia paresthetica without further comment. The Board finds this examination to be inadequate. First, there is no discussion with regards to which symptomatology is separate and distinct with respect to the meralgia paresthetica from the service-connected bilateral thigh radicular disabilities. See Mittleider v. West, 11 Vet. App. 181 (1998). Secondly, the Board notes that a secondary service connection claim has two parts necessary for a proper opinion: causation and aggravation. The October 2008 examiner does not mention, discuss, or otherwise address the aggravation component of a secondary service connection claim at all in his opinion. Lastly, the examiner summarily concludes that the Veteran's meralgia paresthetica is unrelated to the Veteran's service-connected lumbar spine disability, but rather is due to his obesity. There is no discussion of facts in the case, the lay evidence in the case, or even any discussion of the medical literature attached which appears to have been provided to bolster his statement. In short, there is no rationale provided for the examiner's opinion. For these reasons, the Board finds that a remand is necessary in order to afford the Veteran another VA examination which adequately addresses whether his claimed neurological conditions are related to service or a service-connected disability. 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 Omaha and Des Moines VA Medical Centers, or any other VA medical facilities that may have treated the Veteran, since December 2011 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his neurological condition of his bilateral lower extremities, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA examination in order to determine the nature and etiology of any neurological condition of the bilateral lower extremities, excluding his service-connected bilateral thigh neurological disabilities. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should specifically discuss whether there is a separate and distinct neurological condition present in the Veteran's bilateral lower extremities in addition to the radicular disabilities of his bilateral thighs. The examiner must specifically discuss which symptoms are independent of those two service-connected disabilities. Otherwise, he is to presume that all neurological symptomatology of the bilateral lower extremities are the result of the Veteran's service-connected radiculopathy. For any separate and distinct neurological condition found (e.g., meralgia paresthetica), the examiner should opine as to whether that disorder at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service. The examiner must also discuss whether any separate and distinct neurological disorder at least as likely as not was caused by his service-connected lumbar spine disability and the associated bilateral thigh radiculopathy. The examiner should specifically discuss any previous, relevant VA examiners' findings and opinions with regard to this matter, including the May 2008 and October 2008 examiners' opinions, as well as any lay evidence of record. The examiner should further opine whether the Veteran's separate and distinct neurological disorder-should it not be related to service or caused by a service-connected disability-is aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his service-connected lumbar spine disability and associated bilateral thigh radiculopathy. If aggravation is found, the examiner should quantify the approximate degree of aggravation to the best of his/her ability. 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 explanation as to why this is so must be provided. The medical reasons for accepting or rejecting the Veteran's history and theories of entitlement should be set forth in detail. 4. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of service connection for a neurological condition of the bilateral lower extremities, excluding service-connected left thigh paresthesias and right thigh L4 dermatomal radiculopathy, to include as secondary to lumbar spine disability. 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. 2012). _________________________________________________ JENNIFER HWA 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) (2012).