Citation Nr: 1010797 Decision Date: 03/22/10 Archive Date: 03/31/10 DOCKET NO. 02-00 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant (the Veteran) had active service from February 1980 to February 1984. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified via Video Conference at a Board hearing held in May 2002. A transcript of the hearing has been associated with the claims file. In October 2007, the Board informed the Veteran that the Veterans Law Judge that conducted his May 2002 hearing was no longer employed by the Board. The Veteran was told he had a right to request a new hearing. However, he did not do so. In March 2005 the Board denied these claims. The Veteran appealed the Board's denial; and in July 2007, the United States Court of Appeals for Veterans Claims (Court) remanded the case to the Board for additional development. In July 2008, the Board again denied the claims, and the Veteran again appealed. In November 2009, pursuant to a Joint Motion for Remand, the Court once again remanded the case for additional development. The appeal is again REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In the November 2009 Joint Motion, the parties identified two essential flaws in the Board's July 2008 decision. First, the parties identified problems with the March 2008 examination report, upon which the Board had placed the most probative weight. The parties noted that the Board found that the March 2008 VA examiner thoroughly reviewed the Veteran's claims folder and determined that his current foot diagnoses were less likely than not related to his active service, and found that this opinion was clear, in contrast to other opinions that the Board found to be speculative. The parties agreed that this statement of reasons or bases is inadequate, in that it does not consider whether the March 2008 VA examiner offered any rationale for his conclusion. The parties concluded that remand was required for the Board to ensure that VA procures an adequate medical opinion and for the Board to provide an adequate statement of reasons or bases for its findings and conclusions. Citing Nieves- Rodriguez v. Peake, 22 Vet. App 295 at 304 (2008). Second, the parties found that the March 2008 examiner did not clarify whether the appellant suffers from an ankle disability or whether his chronic ankle pain is a symptom of his foot disability. Specifically, the examiner provided no diagnosis for the right ankle, but noted a completely normal examination of the right ankle and normal x-rays of the right ankle. However, despite noting that the appellant has complaints of right ankle pain, including some popping and catching sensations, the examiner did not opine as to whether these ankle complaints were a symptom of his foot disability, nor did the examiner discuss a relationship, if any, between these ankle complaints and the examiner's other findings including retro Achilles tendonitis on the right. Because the Court had specifically found that the previous examination did not clarify whether the appellant suffers from an ankle disability or whether his chronic ankle pain is a symptom of his foot disability and the subsequent examination did not provide an answer responsive to the Court's concerns, the parties agreed that remand was required for an examination that is in substantial compliance with the remand order. Citing Stegall v. West, 11 Vet. App. 268, 271(1998). Accordingly, the case is REMANDED for the following action: The examiner who conducted the March 2008 examination should be requested to provide a supplemental opinion. If the examiner is not available, an opinion may be obtained by another qualified medical professional, based on a review of the record. If the reviewer determines that further examination is necessary, such should be scheduled. However, the Veteran should not be required to attend another examination as a matter of course, if an opinion can accurately and reliably be provided by file review alone. The entire claims file must be made available to the designated reviewer/examiner. Regarding the feet, the reviewer should provide an opinion as to whether it is as likely as not (i.e., to at least a 50-50 degree of probability) that any foot disability present is related to any of the Veteran's complaints while in service of feet and ankle pain, or whether such etiology or relationship is unlikely (i.e., less than a 50-50 probability). The examiner should provide a rationale for the opinion, explaining why there is or is not such a relationship. Regarding the right ankle, the examiner should provide an opinion as to whether it is as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's current complaints of ankle pain are a symptom of his right foot disability. The examiner should provide a rationale for the opinion, explaining why there is or is not such a relationship. The claims folder should be made available to the reviewer. 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. 2009). _________________________________________________ H. N. SCHWARTZ 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) (2009).