Citation Nr: 1301954 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 12-21 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from January 1952 to October 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, the RO to which it was brokered by the Honolulu, Hawaii RO. Original jurisdiction over the claims files has remained with the RO in Honolulu, Hawaii. Although the Veteran initially disagreed with the issue of the effective date for the award of service connection for posttraumatic stress disorder (PTSD), and a statement of the case was issued with regard to that claim, he did not include it in his substantive appeal, VA Form 9, to the Board. Rather, he specified that he was only appealing the issue of service connection for right ankle disability. As such, it is not part of this appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 urges that his right ankle disability is due to an accident he had in service. He currently has a diagnosis of traumatic injury of the right foot. The record does not document that the Veteran underwent injury to the right foot or ankle in service. However, the record dating from July 2010 is replete with statements from the Veteran detailing injury to the right foot that occurred in August 1953. He maintains that he was serving in the marine corps at a prisoner of war (POW) camp in Masan, Korea, when he fell off of a ladder coming down from guard duty. One of the rungs broke and he was stuck hanging by his right ankle. He remembers hanging upside down by his right ankle for a while until he fell. He was taken to the field dispensary where it was determined he had a sprained right ankle. He noted that it was wrapped and he was on crutches for two weeks. Unfortunately, there is no record of this incident in his service medical records or in any available records. The Veteran urges that in-service reports of physical examination support his contention inasmuch as the November 1951 pre-induction physical documents normal feet and lower extremities, and the October 1954 report reflects abnormal feet. The Board points of that the October 1954 report also indicates 'pes planus' as the description of the abnormality of the feet. The Veteran urges that his right ankle bothered him upon separation from service, but he did not attend to it as he was a young man with a family to support. He readily admits that the first medical attention he received for the right ankle was in 2012 and that he just put up with it for many years. The Veteran asks in his May 2011 notice of disagreement that the VA, "review his claim in the manner in which it is being presented...in all truth and sincerity." Private treatment records from Kaiser Permanente dated in July 2012 show that the Veteran sought treatment for a traumatic right foot injury. The Veteran reported that he injured the foot in Korea in 1953 when he fell off stairs and was stuck upside down for 10 minutes. Over the years, he has noticed hypertrophy over the dorsal right foot and increased varicosities over the right foot and ankle. It was noted that VA was going to determine whether this is service-connected. He denied significant pain over the right ankle at present and noted there was no further injury of the ankle since 1953. The examiner noted varicosities over the right ankle and foot but none over the left ankle or foot. There was bony hypertrophy over the right dorsal foot and right ankle. X-rays showed no recent evidence of injury and no evidence of significant degenerative change, but there were vascular calcifications. The assessment was traumatic injury of the right foot. The examiner stated that the history of injury could contribute to increased varicosities over the right ankle since there was an absence of varicose veins on the right. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). In case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation; see 38 U.S.C.A. § 1154(b). However, 38 U.S.C.A. § 1154(b) does not address the questions of the existence of a present disability or of a causal relationship between such disability and service. Caluza v. Brown, 7 Vet. App. 498, 507 (1995). As reflected in the March 2011 rating decision granting service connection for PTSD, the Veteran's personnel records reveal that he participated in the spring and summer offensive in 1953 as well as the defense of United Nations positions in 1953 and 1954 in Korea. Thus, his lay evidence of in-service incurrence is accepted as it is consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence. Therefore, the Board notes the Veteran's detailed, consistent description of his accident, and finds no reason to doubt his veracity as to his recollection of this incident. As such, despite the fact that the National Personnel Records Center indicated in December 2009 that it could find no medical records pertaining to the Veteran's 'fractured right foot' at Masan P.W. Camp, he is considered a reliable historian as to the reported event. In light of the Veteran's credible assertions as to injury in service and problems through the years, albeit problems that did not prompt him to seek medical attention for many years, and his documented right ankle problems in 2012; the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any current right ankle disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be afforded a VA examination to determine the nature and etiology of all right ankle disorders present during the period of this claim. Any indicated studies should be performed, and the claims file must be made available to and reviewed by the examiner. Based on the review of the record and the examination results, the examiner should provide an opinion with respect to each disability related to the right ankle present during the period of this claim as to whether it is at least as likely as not (50 percent probability or greater) that the disorder is etiologically related to the Veteran's active service. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian and that he did injure his ankle in service. He also asserts that he experienced symptoms for many years. A complete rationale for each opinion expressed must be provided. 2. Then, after ensuring the examination report is adequate and conducting any other development that is deemed warranted, the RO should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the 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). _________________________________________________ S. S. TOTH 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).