Citation Nr: 1343402 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 11-07 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for right and left calf muscle strain and/or pain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active naval service from November 1989 to November 2009. He is a Persian Gulf War veteran. This appeal arises to the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that in pertinent part denied service connection for left arm neuropathy, right calf strain, and left calf strain. The Board has processed this appeal using the Virtual VA paperless claims processing system. Each reviewer of this case should take into consideration the existence of the electronic record. The electronic file reflects that the Veteran appealed for service connection for a disability that he described as left arm tingling and numbness. In March 2011, shortly after receiving a VA Form 9, Appeal to the Board of Veterans' Appeals, the RO issued a rating decision that granted service connection for "cervical degenerative joint disease with spinal stenosis and possible radiculopathy." The RO assigned an initial noncompensable rating for that disability. The RO apparently intended, in that decision, to establish service connection for any claimed left arm tingling and numbness. Because the Veteran did not appeal the initial rating or effective date for service connection for this disability, the RO considered the matter resolved and closed. More recently, the Veteran's representative has characterized the current appeal as one of service connection for right and left calf strains. Thus, it appears that the Veteran's representative has also considered the matter of service connection for left arm tingling and numbness to be resolved and closed. The Board concludes that because service connection has been granted for "possible radiculopathy," the issue of service connection for left arm tingling and numbness is moot and need not be further addressed. This appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The RO has denied service connection for right and left calf strains on the basis that there is no current disability. A July 2009 pre-discharge VA general medical compensation examination report reflects that a bilateral calf condition arose about three years earlier and that the diagnosis was tendonitis. Upon examination, the July 2009 examiner found no current condition, as the bilateral calf strain had resolved. An October 2011 VA compensation examiner evaluated both knees, mentioned that there was no claimed tibial or fibular impairment, but did not address bilateral calf strains or other calf muscle symptoms. The Veteran's representative has continued to argue for service connection for bilateral calf strains. No examiner has addressed whether there is any calf-strain-related symptom, such as chronic [existing for 6 months or longer] muscle pain. 38 C.F.R. § 3.317(a), (b). Because the Veteran is a Persian Gulf War veteran, VA should address the applicability of 38 U.S.C.A. §§ 1117, 1118, for undiagnosed illnesses and the presumptions of service connection for such illnesses. Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or reasonably by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Accordingly, the case is REMANDED for the following action: 1. The RO must obtain up-to-date relevant treatment reports and associate them with the electronic file. 2. After the development requested above has been completed to the extent possible, the RO should make arrangements for an appropriate examination of both calves. The electronic record should be made available to the physician for review. 3. The examining physician is asked to review the pertinent medical history and note that review in the report. The physician is asked to elicit a complete history of relevant symptoms from the Veteran, examine his calves and lower legs, and then offer a diagnosis, if appropriate. For each diagnosis offered, the physician is asked to address whether it is at least as likely as not (50 percent or greater possibility) that the diagnosis is related to active service. If any symptom exists that cannot be attributed to a known clinical diagnosis, the physician is asked to note that symptom. The physician should offer a rationale for any conclusion in a legible report. 4. After the development requested above has been completed to the extent possible, the RO should re-adjudicate the claim. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and given an opportunity to respond thereto before the case is returned to the Board. The SSOC must include notice of 38 C.F.R. § 3.317 because the SOC did not provide notice of this relevant regulation pertaining to Persian Gulf War Veterans. The Veteran 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). Failure to report for a scheduled VA examination, without good cause, may have adverse consequences on this claim. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals