Citation Nr: 0813520 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-38 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a left ankle disability, to include as secondary to a service-connected right ankle disability. 2. Entitlement to service connection for a low back disability, to include as secondary to a service-connected right ankle disability. 3. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The appellant had active duty from September 2, 1975 to October 21, 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran maintains that he has low back and left ankle disabilities secondary to his service-connected right ankle disability. VA treatment records dated in January 2000 show that the veteran complained of low back pain; however, there was no reported diagnosis. Moreover, when the veteran underwent VA examination in August 2003, the nurse practitioner reported conflicting information regarding a left ankle disability. X-ray of the left ankle taken at that time was unremarkable; however, the examination included a diagnosis of minimal degenerative joint disease with a mild malleolar spur of the left ankle. While it appears that the nurse practitioner may have mistakenly diagnosed a left ankle disorder, the Board cannot make such a determination without further information. Further examination and opinion is needed. The veteran also claims that he should be granted a TDIU. The veteran has reported that he is receiving Social Security Administration (SSA) benefits. In 2003, the RO attempted to obtain records associated with these benefits. In a March 2003 Report of Contact, it was reported that SSA had copies of the veteran's records, but needed additional information concerning the preferred method of transferring the reports to the RO; however, in June 2003, SSA indicated that his records were unavailable at that time. The veteran continues to report that he is receiving SSA benefits (see April 2007 VA outpatient records). A SSA inquiry by the RO in February 2007 shows that the veteran is receiving SSA benefits. However, (as reported in an August 2007 supplemental statement of the case (SSOC)) an August 2007 inquiry did not show that he was receiving benefits. The RO/AMC should attempt to clarify the veteran's status regarding SSA benefits and make another attempt to obtain records. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should make arrangements for all recent treatment records of left ankle and low back pathology to be gathered for review prior to entry of the opinion(s) below. If records are identified that can not be obtained, attempts made to obtain the records should be documented in the claims folder. 2. The RO should request the SSA to furnish a copy of the decision awarding disability benefits and the evidence on which that grant was based. 3. An appropriate VA examination should be conducted to determine the nature and etiology of any left ankle or back disability manifested by pain. The claims folder should be made available to the examiner for review in conjunction with the examination and the examiner should acknowledge such review in the examination report. The examiner should provide opinion as to whether it is at least as likely as not (that is, a probability of 50 percent or better) that the veteran has a chronic left ankle or low back disability caused or aggravated by the service connected right ankle disability. See Allen v. Brown, 7 Vet. App. 430 (1995). A complete rational for any opinion expressed should be included in the report. 4. If any benefit sought on appeal, for which a notice of disagreement (NOD) has been filed, remains denied, the appellant and representative should be furnished a SSOC and given the opportunity to respond thereto. 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. 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ JOHN Z. JONES 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).