Citation Nr: 1804008 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-21 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a bilateral leg injury. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banks, Associate Counsel INTRODUCTION The Veteran had active duty from November 1970 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge in August 2017. A transcript of that hearing has been associated with his claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran claims entitlement to service connection for a bilateral leg injury. Specifically, he claims, together with and through his representative, in relevant part, that his bilateral leg injury/condition was or at least may have been caused by a foot condition he experienced during his military service. See, e.g., Transcript of Hearing Before the Board, dated in August 2017. He also has claimed that his bilateral leg condition was incurred during his active military service, including as the result of an accident he had while driving a "mule" military vehicle. See id. The Veteran was afforded a VA examination in connection with a previous claim for benefits in July 2001. In the report form that examination, the examiner determined that the Veteran had degenerative joint disease (DJD) of both knees, bilateral ankle sprains with varus deformity, and bilateral bowing of the tibias. The Veteran's private medical records also indicate that he has bowing of the tibias. The Veteran was afforded a VA examination in connection with this claim in February 2013. The report from that examination indicates, somewhat confusingly, that it was the examiner's opinion that a) the Veteran did not have a knee or lower leg condition, and b) the Veteran's bilateral leg injury was less likely than not incurred in or caused by a claimed in-service bilateral knee condition. The Veteran was afforded another VA examination for his claimed foot condition in May 2014. In the report from this examination, the examiner indicated that it was his opinion that a) the Veteran's bilateral foot pain was less likely than not incurred in or caused by the Veteran's military service or foot-related complaints therein, and b) the Veteran's foot condition is causally related to his congenital malformation of bilateral curved tibias. It seems, after review of this evidence, that more information would be helpful in the Board's adjudication of this claim. First, additional information would be helpful for the purpose of reconciling the medical evidence of record, which indicates that the Veteran does suffer from bowing of the tibias, with the February 2013 examiner's opinion that the Veteran does not have any lower leg conditions. The Board needs to be clear on whether the Veteran does in fact have any leg conditions. Second, an opinion as to whether the Veteran's tibial bowing (or any other diagnosed leg condition) was incurred during or caused by the Veteran's active duty service or any in-service injury, event, or illness (including but not limited to any in-service bilateral knee condition) would be helpful. The February 2013 VA examination indicates that the Veteran's claimed bilateral leg injury was less likely than not incurred in or caused by an in-service bilateral knee condition, but it does not indicate whether the "leg injury" was incurred in or caused by any other in-service injury, event or disease (for example, any such injury, event or disease related to any of the Veteran's in-service foot-related complaints). Third, an opinion as to whether the Veteran's tibial bowing is a congenital disease or a congenital defect would be helpful, as the Veteran's entitlement to the benefits claimed may be affected by the classification of the condition as one or the other. See Winn v. Brown, 8 Vet.App. 510, 516 (1996). Fourth, an opinion as to whether the Veteran's leg condition was aggravated by his active duty military service would also be helpful, particularly if it is classified as a congenital disease, as opposed to a congenital defect. Id. The February 2013 VA examination report does not address that possibility. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the complete updated VA and private records of all evaluations and treatment the Veteran received for any leg conditions. As needed, signed release forms for private records should be obtained. All requests for records and responses must be associated with the claims folder, in accordance with the provisions of 38 C.F.R. § 3.159(c). 2. After the above has been completed, schedule the Veteran for an appropriate VA examination to determine the etiology of the Veteran's leg condition(s), if any. The entire claims folder should be made available to and reviewed by the examiner. All necessary tests should be performed, all findings should be reported in detail, and all opinions must be supported by a rationale. Specifically, the examiner is asked to address: A) Whether the Veteran's tibial bowing is a developmental defect or a developmental disease. B) If the diagnosed tibial bowing is a developmental defect, please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran incurred any superimposed disease or injury on such congenital defect during his military service C) If the Veteran's tibial bowing is determined to be a congenital or developmental disease, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disease was aggravated (permanently worsened beyond the normal progress of the disease) by the Veteran's period of active duty service. D) Whether any diagnosed non-congenital leg conditions, to potentially include disability of the knees, are at least as likely as not (a 50 percent or greater probability) etiologically related to active service. In reaching an opinion, the examiner is specifically asked to consider that: the Veteran left active service in November 1970; that private medical records and July 2001 and May 2014 VA examination reports indicate that the Veteran displays tibial bowing; and that the Veteran complained of certain foot and knee-related conditions, injuries and/or diseases during his active duty military service, as reflected in his service treatment records. 3. After completing the above actions, and any other indicated development, the claim must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on this matter. 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. §§ 5109B, 7112 (2012). _________________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).