Citation Nr: 0115894 Decision Date: 06/11/01 Archive Date: 06/18/01 DOCKET NO. 99-07 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for the residuals of a left ankle sprain. 2. Entitlement to service connection for the residuals of a right ankle injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD L.A. Howell, Counsel INTRODUCTION The veteran served on active duty from January 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the claims on appeal. REMAND There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Because of the change in the law brought about by the VCAA, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. In addition, because the RO has not yet considered whether any additional notification or development action is required under the VCAA, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). Therefore, for these reasons, a remand is required. In an effort to assist the RO, the Board has reviewed the claims file and identified certain assistance that must be rendered to comply with the VCAA. However, it is the RO's responsibility to ensure that all appropriate development is undertaken in this case. Service medical records reflect that the veteran twisted his left ankle in February 1971 and the ankle was placed in a gel cast. The veteran continued to complain of pain and swelling for several months and, when he was examined in November 1972 prior to his separation from service, he reported some soreness and swelling of the left ankle. Of note, the service medical records are devoid of complaints or treatment for a right ankle disorder. Post service medical evidence is negative for treatment of a left or right ankle disorder for many years. In August 1998, the veteran filed the current claim. In an October 1998 VA joints examination report, he maintained that he injured both ankles in service. He noted that there were no significant residual effects following the injury and that he did fairly well until six to eight years previously when he experienced pain, swelling, burning, and warmth in his ankles. He reported that the pain came and went and he used ace bandages, cream, and Advil for discomfort. The examiner noted that the veteran had a slightly abnormal gait favoring the left ankle. Physical examination revealed no tenderness, no warmth, no increased swelling, and normal range of motion. The examiner observed some pain with flexion and rotation. The final diagnoses included joint pain possibly related to previous history of trauma. Thereafter, X-rays showed a normal left ankle and mild degenerative changes of the right ankle. In a hearing at the RO in July 1999 and before the Board in February 2001, the veteran testified that he injured both his left and his right ankles in service and that both ankles were placed in a gel cast. He indicated that he was treated after service but that those records are not available. He maintained that his ankles had hurt off and on since service separation. VA examination for disability evaluation purposes in October 1998 resulted in a diagnosis of "Joint pain possibly related to previous history of trauma." The United States Court of Appeals for Veterans Claims (Court) stated the following: "Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Thereafter the veteran, in his substantive appeal of March 1999, reported that he continued to have the same left ankle swelling and pain that he experienced in the military and that these symptoms caused him to favor his left ankle. At the July 1999 hearing, the veteran testified that he had a knot in the left ankle in addition to pain and swelling and that he occasionally missed time from work because of left ankle symptoms. His testimony was to the same effect in February 2001. In the opinion of the Board, the October 1998 examination report is inadequate for rating purpose as to the left ankle. The Board notes that the history of an in-service right ankle injury reported by the veteran is not supported by other evidence of record. A medical opinion relating a current right ankle condition to an event or injury in military service is not an adequate basis for granting service connection if the incurrence of the event or injury during military service is not supported by available evidence. See Grover v. West, 12 Vet. App. 109, 112 (1999); LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Accordingly, this case is REMANDED for the following: 1. The RO must review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied. 2. The RO should request the veteran to provide additional details concerning the alleged right ankle injury and right ankle treatment which he received during service. He should be informed that supporting evidence, such as statements from fellow-service men or others who knew of the condition while he was in service, would be helpful. 3. The RO should again arrange for the veteran to be scheduled for an examination to determine the nature and severity of any ankle disability which may be present. The examiner should review the claims folder and provide an opinion, based on the results of the examination and the veteran's medical history, as to etiology and approximate date of onset of any ankle disorder found to be present on examination. Specifically, the examiner should provide an opinion as to the medical probability that any left ankle disorder which may be present is related to the left ankle injury incurred while the veteran was in service in 1971. The examiner should identify the information on which the opinion is based. The opinion should adequately summarize the relevant history and clinical findings and provide a detailed explanation as to all medical conclusions rendered. 4. Thereafter, the RO should readjudicate the claims. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Gary L. Gick Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000).