Citation Nr: 1301335 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-36 222A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a right ankle disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran served on active duty from January 1989 to February 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Pittsburgh, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In that November 2008 rating decision, the RO granted service connection for left knee gonarthrosis, and right shoulder arthrosis, each separately evaluated as 10 percent disabling effective from December 10, 2007, the date of receipt of claim. At that time, the RO also denied the Veteran's claims for service connection for left and right ankle disorders. In February 2009, the Veteran disagreed with the effective dates for his left knee and right shoulder disability evaluations, as well as the denial of service connection for a right ankle disorder asserting that the proper effective date should be March 5, 2007. He appealed to the Board in September 2010. In the Veteran's September 2010 VA Form 9, substantive appeal, he requested a Board videoconference hearing. In October 2011, the RO sent the Veteran a letter that shows his address was in Germany, and informing him that VA could not accommodate a request to hold a hearing overseas. See also 38 C.F.R. § 20.704 (a) (2012). In the RO letter, the Veteran was instructed as to his options for a Board or RO hearing, and he was afforded 60 days to respond. There is no indication in the claims folder that a response from the Veteran was forthcoming, so it must be concluded that he is not desirous of a Board or RO hearing on his claim. In a January 2012 rating decision, the RO awarded the Veteran an earlier effective date of March 5, 2007 for his service connected left gonarthrosis and right shoulder arthrosis. The sole issue remaining before the Board is service connection for a right ankle disorder. 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 seeks service connection for a right ankle disorder that he contends began during his military service. A review of the record shows that further development is necessary prior to analyzing the claim on the merits. Initially, the Board recognizes that the Veteran's service treatment records (STRs) show treatment that he received on several occasions for right ankle injuries later diagnosed as ankle sprains. In an April 1990 X-ray of the right ankle, the diagnostic impression was questionable chip fracture of the lateral talus. However, a May 1994 X-ray of the right ankle was negative. It is imperative to note at this point that the duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. In claims for disability compensation, it requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2012). The Veteran resides overseas, and through the U.S. embassy there, the RO arranged for him to have an orthopedic examination for his claimed right ankle disability. In the September 2008 medical examination report, it was mentioned that the Veteran complained of stress pain in his right ankle since 1990, with supination/distortion trauma during physical training. A physical examination was performed and range of motion studies showed that (right), active dorsal extension/plantar flexion, was 15-0-35 degrees; and passive, was 25-0-40 degrees. There was end-range-of-motion pain in the fibular apex on dorsal extension. A right ankle X-ray was normal. The diagnosis was recurrent arthralgia on the right upper ankle after repeated supination trauma. Here, a medical examination was provided in an effort to assist the Veteran. However, review of the examination report shows that the diagnostic assessment was recurrent right ankle arthralgia, essentially pain of the right ankle joint. VA case law is clear in holding that the manifestation of pain, in and of itself, does not comprise a cognizable disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("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."); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). While arthralgia may not be considered a disability for VA purposes, the recent examination also showed potential evidence of limitation of motion of the right ankle, as well as pain on motion. Those findings have not been addressed from a clinical standpoint as to whether they are part of some chronic disease process or specifically whether they are related to the Veteran's military service. There is no indication that the examiner had use of the claims folder in rendering the diagnosis, to include the Veteran's STRs or that any specific question on etiology was posed. Thus, the Board finds that an addendum opinion that addresses these matters must be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for the examiner who conducted the September 2008 orthopedic examination of the Veteran's right ankle, to offer an addendum opinion. The Veteran's claims folder and all pertinent records must be made available for the physician's review. a) The physician is requested to clarify what the underlying right ankle pathology is to which the Veteran's recurrent arthralgia (shown on September 2008 examination) is attributable in light of findings from the examination that potentially show some limitation of motion of the right ankle, and pain on motion of the right ankle. The examiner should note that pain without a diagnosed or identifiable underlying malady or condition does not constitute a disability for which service connection can be granted. b) If a chronic right ankle disability, other than the previously diagnosed arthralgia, is diagnosed, opine as to the likelihood (very likely, as likely as not, or unlikely) this chronic right ankle disability is attributable to the Veteran's military service. The term "as likely as not", i.e., at least 50 percent probability, does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. To facilitate making this important determination, it is absolutely imperative the designated examiner review the evidence in the claims file, including a complete copy of this remand, for the pertinent medical and other history. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence supporting or against the claim. If the examiner cannot offer an opinion that fact must be noted and an explanation provided why the opinion cannot be provided. If the opinion cannot be offered without further examination, then further examination must be provided. 2. Then the RO/AMC should readjudicate the remaining claim for service connection for a right ankle disorder in light of the additional evidence. If the claim is not granted to the Veteran's satisfaction, send him and his representative a SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. 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). _________________________________________________ S. L. Kennedy 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) (2012).