Citation Nr: 1301818 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 05-13 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right foot/ankle disability, to include as secondary to service-connected chronic strained ligaments of the left foot. 2. Entitlement to an increased rating for chronic strained ligaments of the left foot, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1986 to June 1990. He had additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from December 2004 and February 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In July 2005, the Veteran presented testimony at a hearing conducted at the Detroit RO before a Decision Review Officer (DRO). A transcript of this hearing is in the Veteran's claims file. In November 2008, the Board denied the matters on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently, in July 2010, the Court granted a Joint Motion for Remand (Joint Motion) filed by representatives for both parties, vacating the Board's November 2008 decision and remanding these issues to the Board for further proceedings consistent with the Joint Motion. Prior to the November 2008 Board decision, in August 2007, the Veteran underwent a VA examination and the 20 percent rating was continued in a September 2007 rating decision. The Veteran filed a notice of disagreement (NOD) with that decision in September 2007; a statement of the case (SOC) was issued in February 2008, and a Form 9 was obtained in March 2008. Although the Veteran filed the Form 9 in March 2008, the Board did not have the benefit of the review of any of the additional development undertaken by the RO at the time of the decision. As referenced by the July 2010 Joint Motion, the August 2007 VA examination is not discussed in the November 2008 Board decision. In other words, at the time of the November 2008 decision, the Board was not aware that the claim for entitlement to an increased rating for service-connected chronic strained ligaments of the left foot was readjudicated by the RO after the matter had initially been certified to the Board. Nevertheless, in July 2010 the Court ordered that the November 2008 Board decision should be vacated and remanded. Accordingly, as the Board's denial of the claim for entitlement to an increased rating for chronic strained ligaments of the left foot is now vacated, the Veteran's claim for an increased rating encompasses both the December 2004 and September 2007 rating decisions. In January 2011, following the Court's order to vacate and remand, the Board remanded the matters on appeal so that the Veteran could testify before a Veterans Law Judge as requested. The Veteran was afforded that opportunity at a July 2012 videoconference hearing; a transcript of that hearing is of record. For reasons discussed below, this appeal is once again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Regrettably, the Board's review of the claims file reveals that further RO action on these claims is in order prior to adjudication. The claims file contains VA treatment records dated from May 1999 to March 2008. The Veteran testified at his July 2012 videoconference hearing, however, that he receives treatment at the Detroit, Michigan VA Medical Center (VAMC) every three months and that he has been receiving treatment at this facility since 1990. The Veteran also testified that following his active duty service he served in the Army National Guard in Detroit. Presently, service treatment records from his period of National Guard service have not been included in the evidence of record. In accordance with its duty to assist, the AMC/RO must attempt to retrieve any and all records pertinent to the Veteran's claim. 38 C.F.R. § 3.159(c). Thus, the AMC/RO must make additional attempts to obtain the Veteran's outstanding VA treatment records and National Guard records. See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered to be in the constructive possession of VA adjudicators during the consideration of a claim). Additionally, the Veteran's claims file includes a brief, undated note from a physician, A.M., which states that the Veteran has right ankle osteoarthritis which is "likely" related to his favoring the right foot secondary to a chronic inflammatory arthritis of the left ankle. Dr. A.M., however, offered no further rationale for this finding and it is not clear upon what information this conclusion was based. Under these circumstances, the Board finds that further examination with a medical opinion is warranted to address whether any currently diagnosed right ankle disorder is related to the Veteran's service-connected left foot disorder. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Finally, the Veteran last received a VA examination to determine the severity of his left foot and ankle condition in August 2007. The examination report reflects that it was difficult to complete any testing on the left foot/ankle as the Veteran's leg had been recently casted due to a fracture of the left leg. VA is obliged to afford a Veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. See VAOPGCPREC 11-95 (1995). Thus, the VA examiner is asked to examine the Veteran to determine the current severity of his left foot disorder. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain from the appropriate source(s) any outstanding service treatment records pertaining to the Veteran's National Guard Service. The RO's efforts should include contacting the Records Management Center, the National Personnel Records Center, and the Veteran's National Guard unit in Michigan. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should obtain from the Detroit VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, including any archived records, dated from 1990 to May 1999, and since March 2008. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Contact the Veteran to request the names and addresses of all medical care providers who have treated him for his claimed right foot and ankle and his service-connected left foot disorder. After the Veteran has signed the appropriate releases, those records should be obtained and those records not already associated with the claims file should be associated with the claims 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 records for VA review. All attempts to procure records should be documented in the file. If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. 4. After all records and/or responses received are associated with the claims file, the RO/AMC should schedule the Veteran for a VA orthopedic examination to evaluate the severity of his left foot disorder and the nature and etiology of any right foot and/or ankle disorder. Access to the claims file, Virtual VA, and a copy of this remand must be made available to the examiner for review. All appropriate tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report) and all clinical findings should be reported in detail. Right Foot/Ankle - The examiner must identify any current right foot and/or right ankle disorder(s), including osteoarthritis. Then, with respect to each diagnosed disability, the examiner should opine as to: (a) Whether it is at least as likely as not (50 percent probability or greater) that the disability had its onset during service or is otherwise related to service. (b) Whether it is at least as likely as not (50 percent probability or greater) that the disability is proximately due to or aggravated by (permanently worsened beyond natural progression) his service-connected left foot disorder. A complete rationale for any opinion expressed must be provided. The examiner is to consider all relevant evidence, to include any lay statements of record and the undated note from Dr. A.M. linking right ankle osteoarthritis to left ankle arthritis. If the examiner is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. Left Foot - The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his current service-connected chronic strained ligaments of the left foot. The examination should include range-of-motion studies. With regard to range-of-motion testing, the examiner should report at what point (in degrees) that pain is elicited as well as whether there is any functional loss due to pain, weakened movement, excess fatigability or incoordination. All functional losses should be equated to additional loss of motion (in degrees) beyond what is shown clinically. Any opinions expressed should be based on the results of examination, a review of the medical evidence of record, and sound medical principles. 5. After the development requested has been completed, the AMC/RO should review the examination report(s) to ensure that it is/they are in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented his or her consideration of Virtual VA. If any report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 6. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of his remaining claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 7. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO is to readjudicate the issues on appeal in light of all pertinent legal authority and all relevant evidence (particularly to include any evidence in the paperless, electronic claims file and/or any evidence added since the RO's last adjudication of each claim). If any benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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. 2012). _________________________________________________ STEPHANIE L. CAUCUTT Acting 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).