Citation Nr: 1126408 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 06-32 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of a left ankle injury. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. Diliberto, Associate Counsel INTRODUCTION The Veteran had active service from January 1962 to November 1964. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the benefit sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. In both December 2008 and March 2010 the Board remanded the Veteran's claim for further development. Unfortunately, the claims file reflects that further action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this issue. 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 has claimed entitlement to service connection for residuals of a left ankle injury. Although the Board sincerely regrets the additional delay, the United States Court of Appeals for Veterans Claims (Court) has held that the Board is obligated by law to ensure that the RO complies with its directives; and where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As noted above, the Veteran's claim most recently came before the Board in March 2010, at which time it was remanded for further development. The Board's remand noted that the Veteran had been afforded a VA examination in support of his claim in March 2009, but that the report from that examination was deficient for lack of adequate rationale. In addition, the Board noted that an opinion on a possible etiological link between the Veteran's in-service ankle injury and current symptomatology, to include varicose vein problems, phlebitis and venous insufficiency, was necessary. The Board instructed the RO/AMC to obtain either an addendum to the March 2009 VA examination or an entirely new examination if the March 2009 examiner was not available. The June 2010 addendum report failed to address either of these deficiencies. Specifically, the examiner stated only that the Veteran had a fracture of his left fibula in 1995 and that the Veteran's current ankle pain was more likely than not related to that fracture than from military service. A more precise rationale is required, indicating a review of the claims file and addressing other medical opinions contained in the claims file. In addition, the examiner completely failed to address the possibility of an etiological link between the Veteran's in-service ankle injury and his other current symptomatology, to include varicose vein problems, phlebitis and venous insufficiency. In order to afford the Veteran every possible consideration an entirely new VA examination is necessary. As the claim is being remanded, the Board finds that the RO/AMC should obtain all of the Veteran's VA treatment records since June 2010. In addition, the Veteran should be asked to identify any additional treatment records since June 2006 and the RO/AMC should attempt to obtain these records. For the reasons stated above, and in order to give the Veteran every consideration with respect to the present appeal, further development of the case is necessary. This case is being returned to the RO via the Appeals Management Center (AMC) in Washington, D.C., and the Veteran will be notified when further action on his part is required. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and inquire whether he has undergone any private treatment for his ankle disorder since June 2006. If the Veteran indicates that he has received any treatment or evaluation, the RO/AMC should obtain and associate those records with the claims file. In addition, the RO/AMC should obtain all of the Veteran's VA treatment records since June 2010, particularly those from the Temple VA Medical Center. 2. Thereafter, the RO/AMC should schedule the Veteran for an additional VA examination to determine the nature, extent and etiology of his claimed left ankle injury residuals. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims folder and remand have been reviewed. Any appropriate evaluations, studies and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. For any left ankle disorders noted, the examiner is asked to specifically determine whether they are it is at least as likely as not related to active service or any event therein, to include the Veteran's confirmed in-service left ankle injury. In addition, the examiner is asked to determine whether it is at least as likely as not that the Veteran's claimed varicose vein problems, phlebitis and venous insufficiency, were caused or aggravated by the Veteran's confirmed in-service ankle injury or any residuals thereto. A complete and full rationale for each opinion offered must be included in the report and an explanation of the principles involved would be of considerable assistance to the Board. Specifically, that rationale should explain the extent to which the opinion is based on medical principles and the extent to which it is based on the history provided by the Veteran. Moreover, that rationale should address the March 2010 VA examination report, the June 2010 addendum to that report and any etiological opinion expressed in the Veteran's private treatment records. 3. When the requested development has been completed the case should again be reviewed by the RO, to include consideration of any additional evidence submitted. If the benefits sought are not granted the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. 2010). _________________________________________________ V. L. JORDAN 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) (2010).