Citation Nr: 0811716 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 06-34 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for right ankle disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The veteran had active military service from March 1951 to December 1952. These matters come to the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In November 2007, the veteran testified during a videoconference hearing before the undersigned Acting Veterans Law Judge. In March 2008, a Deputy Vice Chairman at the Board granted the veteran's motion to advance the appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). REMAND Through written argument and testimony, the veteran contends that he suffered a right ankle fracture during basic training at Fort Leonard Wood, Missouri. As a result, he wore a cast on his right lower extremity for three weeks. The veteran has testified that following the removal of his cast and completion of his training at Fort Leonard Wood he was sent to Korea. He stated that while his right ankle bothered him a little it was not enough of a problem that he sought medical treatment. The veteran also testified that beginning around 1997, he began to experience problems with his right ankle and right knee. The veteran's service medical records are not associated with the claims file; these apparently were lost in the 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. Furthermore, a search of morning reports and/or sick call reports associated with the veteran's unit during his reported training at Fort Leonard Wood did not reveal the veteran's name. Here, the Board notes that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the- doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005)(per curiam) citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). A review of the medical evidence of record does reflect arthritic changes of the right ankle and right knee based on X-ray findings. A March 2006 statement from R. P. B., D. P. M. (hereinafter, "Dr. B"), notes the veteran's reported history of sustaining a fracture of the lateral malleolus of the right ankle following a jump off a 14-foot wall during training at Fort Leonard Wood. The veteran reported that he was placed in a cast for three weeks but that he had not received treatment for his right ankle since that time. Dr. B concluded that the veteran's right ankle disability consisted of post-traumatic arthritic involvement and capsulitis of the affected area. The Board notes that the veteran is competent to provide testimony concerning factual matters of which he has first hand knowledge: fracturing his right ankle in service, and/or being treated for a right ankle fracture in service. He is not competent to provide, however, a diagnosis or etiology regarding any current right ankle, or right knee, disability. Washington v. Nicholson, 19 Vet. App. 362 (2005). Additionally, the Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran. See e.g., Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Furthermore, although the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render the lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In reviewing the evidence of record, the Board finds persuasive that in a July 2003 VA treatment note, almost two years before filing his claims for service connection in May 2005, the veteran reported that he had suffered an ankle fracture in service and that he had been placed in a cast. Thus, the veteran's recitation of his service medical history in July 2003 was not associated with any claim for VA compensation benefits. The veteran has a current diagnosis of right ankle arthritis. The March 2006 statement from Dr. B appears to relate the veteran's current right ankle arthritis to his period of service. However, there is a lack of any documented complaints or treatment for a right ankle disability for more than 40 years. Furthermore, a March 2006 treatment note from Dr. B reflects that his review of an X-ray of the veteran's right ankle did confirm some arthritic involvement through the right ankle but that he could not see any signs of previous fracture. Otherwise, with respect to the veteran's right knee disability which the veteran has claimed could be related to his right ankle disability, a December 2001 private treatment note reflects the veteran's reported history of being told that his right leg was longer than his left leg. VA's duty to assist includes affording the claimant an examination or obtaining a medical opinion when there is competent evidence that a claimant has a current disability, or persistent or recurrent symptoms of a disability; there are indications that the disability may be associated with active service; and the record is insufficient to decide the claim. See 38 U.S.C.A. § 5103A(d) (West 2002). In light of the above findings, and as the veteran's claim for service connection for a right ankle disability could affect his claim for service connection for a right knee disability, the Board finds that the veteran should be scheduled to undergo a VA orthopedic examination. Such examination should include a well reasoned medical opinion addressing the nature and etiology of any diagnosed right ankle disability and right knee disability, which is based upon consideration of the veteran's documented history and assertions through review of the claims file. Id. (The veteran is herein advised that failure to report to any scheduled examination, without good cause, could result in denial of his claims on appeal. See 38 C.F.R. § 3.655 (2007)). The Board additionally notes that in a May 2005 statement, the veteran reported that other soldiers he had served with had witnessed his treatment in service for a right ankle fracture. However, the veteran noted that he did not have the soldiers' names. The Board also notes that a statement from the veteran's sister, received by the RO in May 2007, documents that the veteran had notified her and/or his family that he had broken his ankle while running an obstacle course during training. In light of this remand for the development above, the veteran should also be invited to submit a copy of the letter he sent to his sister and/or his family, if such document is still available, in support of his claims. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the agency of original jurisdiction (AOJ) of the responsibility to ensure full compliance with the Act and its implementing regulations. Hence, in addition to the actions requested above, any other development and/or notification action deemed warranted under the VCAA should be undertaken prior to adjudicating the claims on appeal. In view of the foregoing, the case is REMANDED for the following action: 1. The veteran and his representative should be sent a letter by the AOJ requesting that the veteran provide sufficient information, and if necessary, authorization to enable VA to obtain any additional pertinent evidence not currently of record. The veteran should be invited to submit any pertinent evidence in his possession, in particular, a copy of the correspondence he sent to his sister and/or family, if such letter is available, that notified them that he had fractured his right ankle in service. The AOJ's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. Upon completion of the action above, the veteran should be scheduled for a VA orthopedic examination. All necessary tests should be conducted. The examiner should review the claims file, including a copy of this remand, as well as the March 2006 statement and March 2006 treatment note from Dr. B, as well as the December 2001 treatment note. The examiner should opine as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any diagnosed right ankle disability is related to the veteran's period of service. The examiner should provide reasons and an explanation for any opinion provided. The examiner should also opine as to whether it is at least as likely as not that any right knee disability is related to the veteran's period of military service. Furthermore, if the examiner has found that the veteran has a right ankle disability that is related to service, then he or she should also opine as to whether any right knee disability (a) was caused or (b) aggravated (i.e., permanently worsened) by the veteran's service-connected right ankle disability. If aggravation of any identified disability by the service-connected right ankle disability is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The bases for any opinion provided should be explained in detail. 3. After the requested development has been completed, the medical opinion evidence should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, corrective procedures must be implemented. 4. After undertaking any other development deemed appropriate, the claims on appeal should be re-adjudicated in light of all pertinent evidence and legal authority. If any benefit sought is not granted, the veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by VA. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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. 2007). _________________________________________________ JOHN KITLAS 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) (2007).