Citation Nr: 1236770 Decision Date: 10/24/12 Archive Date: 11/05/12 DOCKET NO. 09-10 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from November 2002 to February 2007. This matter comes to the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. 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 VA's duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. In March 2007 the Veteran was provided a VA examination, at which time he offered a history of injury to the left ankle in 2004 with resultant surgical ligament repair on this ankle in 2006. However, the Board is concerned about the adequacy of that examination for several reasons. First, although the examination does document some impairment resulting from the ankle, a normal left ankle was ultimately assessed. Also, as the Veteran's representative has pointed out, the examination report does not reflect the presence of any surgical scarring, which would be expected in this case as the Veteran has reported a history of surgery. For these reasons, the Board finds that the examination is inadequate and that the Veteran should be afforded another VA examination. 38 C.F.R. § 4.2. The Veteran claims that he injured his left ankle in service and that he underwent surgical ligament reconstruction on that ankle, and that this is documented in his service treatment records. VA has been unable to obtain the Veteran's service treatment records and has made a formal finding as to their unavailability. 38 C.F.R. § 3.159(c)(2). In several letters, VA asked the Veteran to provide VA any service treatment records that he may have in his possession. See letters dated March and September 2007. Nevertheless, the Veteran never submitted any such records, despite the fact that in a July 2008 communication he indicated that he had in his possession copies of his service treatment records showing an injury to the left ankle. In this regard, it must be noted that 'the duty to assist is not always a one-way street," and that the Veteran has an obligation to assist in the development of his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Given that this matter must be remanded for further VA examination, upon remand of this matter the Agency of Original Jurisdiction (AOJ) should give the Veteran another opportunity to provide VA with copies of his service treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he provide VA with copies of any of his service treatment records which may be in his possession. Perform any follow-up as necessary and document negative results. 2. After the development directed in paragraph 1 has been completed to the extent possible, schedule the Veteran for a VA examination by an appropriate medical professional for the purpose of ascertaining the presence, nature and likely etiology of any left ankle condition. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to any newly obtained service treatment records, his lay assertions, and the pertinent medical evidence, noting the Veteran's provided history of injury and surgery in 2004 and 2006, respectively. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and the examination report should note that the claims file was reviewed. The examiner should conduct a thorough examination of the ankle, noting all relevant clinical findings, to include whether there is any surgical or other scarring present. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any left ankle condition is attributable to service. In rendering the requested opinion, the examiner must specifically acknowledge and discuss the competent and credible lay evidence regarding the onset of the disability reported by the Veteran, as well as the competent and credible lay testimony regarding the continuity of symptoms since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (noting that examination found inadequate where examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. 3. After the development requested above has been completed to the extent possible, review the record and readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned to the Board. 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 LANE 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).