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04-20-2013, 05:20 AM #1
- Join Date
- Apr 2013
Entitlement to service connection for a bilateral ankle disability.
Citation Nr: 1242218
Decision Date: 12/11/12 Archive Date: 12/20/12
DOCKET NO. 10-37 136 ) DATE )
On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas
Entitlement to service connection for a bilateral ankle disability.
Veteran represented by:
Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
C. Kedem, Counsel
The Veteran served on active duty from July 1987 to March 1989.
This matter comes to the Board of Veterans' Appeal's (Board) on appeal from an August 2009 rating decision by which the RO denied entitlement to the benefit sought herein.
In April 2011, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. A copy of the DRO hearing transcript has been associated with the record.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required.
A remand is required in this case to ensure that there is a complete record upon which to decide the issue on appeal, so that the Veteran is afforded every possible consideration. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. Â Section. 5103A(a) (West 2002); 38 C.F.R. Â Section. 3.159(c), (d) (2012).
The Veteran alleges that a current disability of the ankles is related to service. The service treatment records reflect a history of ankle sprains as well as pedal edema. The Veteran asserts that he also sustained an ankle fracture in service, although a left ankle X-ray study performed in service revealed no fracture.
The Veteran submitted several lay statements from former colleagues reflecting that he voiced complaints of ankle pain beginning in 1989. At his April 2011 DRO hearing, he reported chronic ankle swelling in service, although it is unclear whether was referring to one or both ankles. The Veteran testified that he experienced similar symptoms after service separation but did not seek much medical treatment due to work obligations and a lack of health insurance. The Veteran indicated that he experienced numbness of the ankle without specifying which one and that the numbness extended to the toes.
The Veteran was afforded a VA orthopedic examination in August 2010. The examiner opined that the Veteran's current bilateral ankle disability, gout, was not due to sprains in service. The examiner did not opine regarding the origins of that gout. As well, the opinion is unclear, as there is a current diagnosis of ankle strains, but the explanation as to why that diagnosis is not due to sprains in service is unclear. The examiner stated, "[The Veteran] has been diagnosed with gout that he claims was causing pain and swelling in both ankles and feet. Therefore, his current ankle condition ankle strains and gout are less likely as not caused or related to the ankle sprains that he suffered while in military service." The second sentence does not follow from the first.
When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the opinion is not adequate because it is unclear and because it does not provide an opinion as to the etiology of the Veteran's gout. The Veteran is seeking service connection for a disability of the ankles no matter what the diagnosis. Cf. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). As such, the etiology of each current disability of the ankles is relevant. Because the August 2010 examiner did not opine regarding the etiology of the Veteran's gout, therefore, the examination report is inadequate.
The examination instructions are contained in the second paragraph below. The examiner is reminded that the Veteran is competent to speak to symptomatology when the symptoms are readily observable. Layno v. Brown, 6 Vet. App. 465, 469 (1994).
The RO/AMC should associate any existing VA clinical treatment records with the claims file. See 38 C.F.R. Â Section. 3.159(c)(2); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990) (holding that all VA treatment records that could potentially be helpful in resolving a claim must be obtained); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file).
Accordingly, the case is REMANDED to the RO/AMC for the following action:
1. Associate any existing VA clinical treatment records with the claims file.
2. Schedule a VA medical examination for a diagnosis of all extant disabilities of the right and left ankles. The examiner should review all pertinent records in the claims file and obtain a thorough medical history from the Veteran, keeping in mind that the Veteran is competent to provide evidence regarding readily apparent symptomatology, and opine regarding whether any ankle disability diagnosed is at least as likely as not (50 percent or greater likelihood) related to service.
Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.
A complete rationale should be provided for the opinion given. If the requested medical opinion cannot be given, the examiner should state the reason(s) why.
3. After completion of the above development, the claim of service connection for a bilateral ankle disability should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and should be afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.
The Veteran 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 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. Â Section.Â Section. 5109B, 7112 (West Supp. 2012).
MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. Â Section. 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. Â Section. 20.1100(b) (2012).