Citation Nr: 1141663 Decision Date: 11/09/11 Archive Date: 11/21/11 DOCKET NO. 08-23 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1995 to September 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In January 2009, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is associated with the claims folder. In April 2009, the Veteran submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2011). 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 Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). In this case, the Veteran does not assert, nor to his service treatment records show, any complaints of or treatment for a left ankle injury prior to his discharge from active duty service on September 1, 1998. However, the Veteran contends that he sustained a left ankle injury anywhere from within hours of his discharge from active service (See January 2008 VA examination), to two days following discharge from active service (See January 2009 hearing transcript) while proceeding to his home by the most direct route. Specifically, at the January 2009 personal hearing, the Veteran testified that he was discharged from active duty on September 1, 1998. Thereafter, he reportedly departed his active duty station on September 2, 1998, and on September 3, 1998, while enroute to the airport to fly home, he allegedly stepped off of a large curb while carrying his sea pack on his back whereby he twisted his left ankle. In this regard, the Board notes that a person discharged or released from a period of active duty, shall be deemed to have continued on active duty during the period of time immediately following the date of such discharge or release from such duty determined by the Secretary concerned to have been required for him or her to proceed to his or her home by the most direct route, and, in all instances, until midnight of the date of such discharge or release. 38 C.F.R. § 3.6(b)(7) (2011). Post service private medical billing receipts reveal that the Veteran was diagnosed with and treated for a fracture of the lateral malleolus on September 4, 1998, anywhere from 1 to 3 days after the alleged left ankle injury occurred given the Veteran's inconsistent and conflicting reports pertaining to the date of injury. The receipt does not indicate which side the fracture was on, and unfortunately, correspondence dated October 2007 from the associated private treatment provider indicated that because the Veteran had not been treated at that facility since 1998, his treatment records were destroyed in 2005. The Board notes that the Veteran testified at the January 2009 hearing that he also re-fractured his service-connected right ankle following discharge, however, he did not provide any further details as to how or when that fracture occurred. This should be further clarified. Nevertheless, after resolving all reasonable doubt in the Veteran's favor and assuming that a left ankle injury occurred while the Veteran was taking the most direct route to his home following his discharge from active duty, and assuming that it was the left lateral malleolus that was shown to be fractured on September 4, 1998, the Board finds that the Veteran should be afforded a VA examination to determine whether there are any left ankle residuals that might be etiologically related to military service. Because there is competent evidence that the Veteran has persistent or recurrent symptoms of disability; the information or evidence indicates that the disability or symptoms may be associated with the Veteran's active service; but, the file does not contain sufficient medical evidence for VA to make a decision, the Board finds that a VA examination is necessary to determine whether the Veteran has a current disability related to his military service. See 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2011); McClendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, the record indicates that there are outstanding VA treatment records that have not yet been requested or associated with the claims folder. Specifically, in July 2000, a VA treatment record indicates that the Veteran received prior VA treatment at the West Haven VA Medical Center. Accordingly, VA treatment records dating from September 1998 to July 2000 should be requested from the West Haven VA Medical Center upon remand. See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Inasmuch as a remand is already required in this case for additional development of the record, the Board finds that the Veteran should also be requested to identify any treatment he has received for his claimed left ankle disability since his personal hearing at the RO in January 2009. He should also be asked to provide details concerning the re-fracture of the right ankle. Accordingly, the case is REMANDED for the following actions: 1. Request the Veteran provide the names, addresses and approximate dates of treatment of all medical care providers, if any, VA and non-VA, who have treated him for the disability on appeal since January 2009. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. In addition, obtain VA treatment records from the West Haven VA Medical Center dating from September 1998 to at least July 2000, and longer if subsequent treatment is shown. Finally, appellant should be contacted to provide information concerning the post-service fracture of his right ankle, to include when it occurred and where treatment was rendered. To the extent possible, these records should also be obtained. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If any records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After the above development has been completed to the extent possible, schedule the Veteran for a VA examination with an appropriate VA examiner to determine the nature of any left ankle disability, and to obtain an opinion as to whether any left ankle disability diagnosed is possibly related to the reported September 1998 left ankle injury as described by the Veteran, or is otherwise etiologically related to any incident of his military service. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should opine as to whether it is more likely, less likely, or at least as likely as not (50 percent probability or greater) that any diagnosed left ankle disability arose during service or is otherwise related to any incident of service, to include the September 1998 left ankle injury as described by the Veteran. If there are no abnormalities found, that should be set out in the claims folder. A complete rationale for all opinions expressed should be provided. 3. The RO/AMC should then readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and provide the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant until he is 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. 2011). _________________________________________________ MICHAEL D. LYON 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) (2011).