Citation Nr: 1009727 Decision Date: 03/15/10 Archive Date: 03/24/10 DOCKET NO. 04-12 118A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for left ankle degenerative arthrosis and necrosis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from May 1967 to January 1971 in the U.S. Air Force. He also had service in the Air Force Reserve from September 1971 through March 1996, including numerous periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Jurisdiction of the Veteran's appeal was transferred to the Phoenix RO when the Veteran moved to Arizona during the course of this appeal. The Veteran presented hearing testimony regarding the issue on appeal in January 2007 before the undersigned Veterans Law Judge at a Travel Board hearing at the Phoenix RO. The Veteran's claim of entitlement to service connection for left ankle degenerative arthrosis and necrosis was previously denied by the Board in December 2007, and the Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In April 2009, the Veteran, through his representative, and the Secretary of Veterans Affairs, through the General Counsel, submitted a Joint Motion for Partial Remand (Joint Motion) requesting that the portion of the December 2007 Board decision denying the above claim be vacated and remanded for readjudication. In May 2009, the Court granted the motion and remanded the case to the Board for further appellate review. Other issues denied by the Board, specifically service connection for bronchitis and entitlement to a compensable rating for bilateral hearing loss, were undisturbed. The case now returns to the Board following the Court Order. Notably, the Board also remanded the issues of service connection for hypothyroidism and service connection for ulcerative colitis for further development as well as the inextricably intertwined issue of entitlement to a permanent and total disability rating for the purpose of entitlement to non-service-connected disability pension in its December 2007 decision. Review of the record reveals that those issues remain in development pursuant to the Remand and have not been recertified to the Board. Thus, in consideration of the foregoing, only the issue reflected on the first page of the present decision will be discussed herein. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action is required. REMAND In the April 2009 Joint Motion, the parties agreed that the Board did not provide an adequate statement of reasons or bases for its determination regarding the left ankle claim. Specifically, the parties found that the Board had failed in its duty to assist because it did not apply the correct standard in its analysis in determining that the third requirement of the McLendon criterion had not been met and did not ensure that the Veteran had been provided with an adequate examination with respect to his ankle claim. The parties agreed that the Board's decision should be vacated and remanded in order to provide the Veteran with an adequate medical examination. In this regard, the parties noted that, under McLendon, a medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The parties stressed that the third requirement has a low threshold. However, the parties agreed that the Board improperly found that the Veteran's lay statements were not competent evidence in determining that he had not satisfied the third criterion of McLendon to warrant another medical examination. The parties further commented that the examination provided to the Veteran in connection with his claim was inadequate and violated the principles set forth in Barr because VA did not ensure that the examination provided to the Veteran was adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The parties specifically found the examination inadequate because the examiner did not provide sufficient detail of the Veteran's disability and did not fully address the dispositive question of whether or not the Veteran's current ankle disability was related to service. In consideration of the foregoing, this case must be remanded for a medical examination and medical nexus opinion with respect to the Veteran's claim for a left ankle disorder. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for appropriate medical examination for his claimed left ankle disorder. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished and all findings reported in detail. a. The examiner should identify any left ankle disorder which has been demonstrated by the Veteran since filing his claim on October 25, 2002, and state whether it is at least as likely as not (i.e., at least a 50 percent degree of probability) that any identified current left ankle disorder is related to active military service, to include any symptomatology shown therein; or whether such a relationship to service is unlikely (i.e., a probability of less than 50 percent. b. The examiner should provide a thorough discussion of the history of the Veteran's disability in the examination report and confirm that the claims folder was reviewed. c. Note: 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. d. If the opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. 2. After the above notification and development has been accomplished to the extent possible, the Veteran's claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and given an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The purpose of this remand is to obtain additional development and ensure due process. The Board does not intimate a decision, either favorable or unfavorable, at this time. The Veteran 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. 2009). ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2009).