Citation Nr: 1031141 Decision Date: 08/18/10 Archive Date: 08/24/10 DOCKET NO. 99-16 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for osteoarthritis, to include residuals of stress fractures of the ankles. (The issue of entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD), generalized anxiety disorder, and depression, is the subject of another decision under the same docket number.) REPRESENTATION Appellant represented by: Daniel K. Krasnegor, Esquire WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The Veteran served on active military duty from September 1970 to August 1973. The appeal comes before the Board of Veterans' Appeals (Board) from a February 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board addressed the claim in an October 2002 decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an October 2003 Order the Court granted a Joint Motion for Remand vacating that portion of the October 2002 Board decision which declined to reopen the claim of entitlement to service connection for osteoarthritis, to include stress fractures of the ankles. The Court granted Joint Motion, and remanded the case for the matter to be reopened and the case to be addressed on the merits. In August 2004, the Board reopened the claim and remanded it for further development. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In the August 2004 remand, the Board directed the RO to obtain all records of hospitalization from Parris Island, South Carolina; Camp Lejeune, North Carolina; and Camp Geiger, North Carolina, during the Veteran's period of service from September 1970 to August 1973. The records from Parris Island were to be limited to the period between September and December 1970. In March 2005, the service department noted that a search of clinical records from Parris Island in 1970 and Camp Geiger in 1973 failed to identify the Veteran. The service department, however, did not search the clinical records of the hospital in Camp Lejeune. Therefore, the RO did not fully comply with the directives of the August 2004 remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that there is neither a military nor a civilian hospital at Camp Geiger, North Carolina. Rather, Marines needing medical care would be treated either at the camp dispensary, or 10 miles to the south at Naval Hospital Camp Lejeune, North Carolina. In this regard, the Veteran in a September 1998 statement reports that he was treated during infantry training in North Carolina for his ankle disorder in the period from December 1970 to March 1971. His personnel records show that during this term he was assigned to the infantry training regiment at Camp Geiger. Accordingly, since the Veteran is claiming that he was hospitalized for his ankles, the additional search below is limited to hospitalization records from Camp Lejeune between December 1970 to March 1971. An August 2006 VA examination report and February 2007 addendum reflect that the examiner relied on the absence of service treatment records showing a in-service fracture in rendering his medical opinion. He did not consider the statements of the Veteran and his brother. In light of Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (VA may weigh the absence of contemporaneous medical evidence, but VA cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.), further development is required. Moreover, the examiner did not specifically determine whether arthritis was compensably disabling within the first year following the veteran's separation from service in August 1973. Therefore, the RO did not comply with the directives of the August 2004 remand. Stegall Accordingly, the case is REMANDED for the following action: 1. The RO must contact the National Personnel Records Center and request any hospitalization records from Naval Hospital Camp Lejeune, North Carolina which pertain to the appellant during the period from December 1970 to March 1971. Any such records secured should be associated with the appellant's claims folder. If the RO cannot locate any identified government records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. The RO should also ask the National Personnel Records Center (NPRC) to indicate how long hospitalization records are kept at local facilities before being shipped to the NPRC. Based on their official written response the RO should undertake all appropriate action to include directly contacting Naval Hospital Camp Lejeune. Of course, if the NPRC reports that all records from 1970 and 1971 would have been retired to the NPRC by this time, there is no need to directly contact Naval Hospital Camp Lejeune. 3. Thereafter, the RO must forward the Veteran's claims file to the VA doctor who conducted the August 2006 VA examination for a review of the claims file. The claims folder and a copy of this REMAND must be made available to the August 2006 VA examiner. If the August 2006 VA examiner is unavailable, the RO should arrange to have the appellant's claims file reviewed by another orthopedist. After a review of the evidence of record, to include the statements of the Veteran and his brother, the August 2006 examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that any ankle disorder is related to service. The examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that degenerative joint disease of the ankles was manifested by at least radiological evidence of arthritis and a painful range of motion within the first year following the claimant's separation from service in August 1973. A complete rationale for any medical opinion must be provided. The August 2006 VA examiner and any other reviewer must append a copy of their curriculum vitae to the medical comment report. 4. After the development requested has been completed the RO must review the report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. Thereafter, the RO should readjudicate the claim. If he benefit is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ DEREK R. BROWN 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).