Citation Nr: 1206348 Decision Date: 02/21/12 Archive Date: 03/01/12 DOCKET NO. 10-19 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a right hip disability. 3. Entitlement to service connection for a right ankle disability manifested by chronic pain. ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from May 2001 to November 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. 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 In March 2009, the RO denied service connection for a right ankle disability. In May 2009, the Veteran submitted a notice of disagreement with that decision, however, a Statement of the Case was never issued. Therefore, the Board must return the claim for the RO to issue a Statement of the Case and to give the Veteran an opportunity to perfect an appeal of such issue by submitting a timely Substantive Appeal. Manlincon v. West, 12 Vet. App. 238 (1999). Additionally, in the October 2008 VA examination, the Veteran was diagnosed with a right ankle condition, right knee condition, and a right hip condition. The examiner did not provide a specific diagnosis and noted pain as the only symptom. The Board notes that pain alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). The examination is unclear as to whether the Veteran has diagnosable, identifiable underlying maladies or conditions regarding his complaints of pain. Therefore, the Board finds that the conclusions of the VA examiner are insufficient to address the claims of service connection. The Board also notes that the Veteran has asserted that his right hip and right knee disabilities are causally related to his right ankle or foot disabilities. Therefore, in providing a new opinion, the VA examiner should also address the Veteran's secondary claims. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should issue the Veteran a Statement of the Case addressing the issue of entitlement to service connection for a right ankle disability. The Veteran should be clearly advised of the time in which he has to file a Substantive Appeal if he wants to continue an appeal with respect to this matter. 2. If possible, the claims file should be referred to the same examiner who conducted the October 2008 VA examination. The examiner should be asked to indicate whether the Veteran has a currently diagnosed disability of the right ankle, hip, or knee. He should then address the following: a.) As to any currently diagnosed right ankle, knee, or hip disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current disabilities are related to his military service. b.) The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current disabilities are causally related to or aggravated by his service-connected pes planus, talocalcaneal coalition of the right foot, or by any current diagnosable right ankle disability. A complete rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. If it is not possible for the October 2008 VA examiner to review the file and provide an opinion, the Veteran should be afforded a new VA examination. The relevant documents in the claims file, to include service treatment records, should be made available to and reviewed by the examiner in connection with the new examination. Any tests deemed medically advisable should be accomplished. The examiner should clearly diagnose any current right hip or knee disability and address the following: a.) As to any currently diagnosed right ankle, knee, or hip disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current disabilities are related to his military service. b.) The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current disabilities are causally related to or aggravated by his service-connected pes planus, talocalcaneal coalition of the right foot, or by any current diagnosable right ankle disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2011). 5. After completion of the above and any other development the RO/AMC should deem necessary, the RO/AMC should review the expanded record and determine if service connection for the disabilities on appeal may be granted. The Veteran and his representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claims. See 38 C.F.R. § 3.655 (2011). 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).