Citation Nr: 1302548 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 08-35 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a bilateral ankle disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1970 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran's previously denied claim of entitlement to service connection for a bilateral ankle condition was not reopened therein. He appealed this determination. In March 2010, the Veteran testified regarding this matter before the undersigned Veterans Law Judge at a Video Conference hearing. A transcript of the hearing is of record. The Board reopened the Veteran's previous denial claim of entitlement to service connection for a bilateral ankle condition in May 2010. The underlying issue of entitlement to service connection for this condition was remanded for additional development. This issue, recharacterized as entitlement to service connection for a bilateral ankle disability, also was remanded by the Board in December 2011. Based on review of the Veteran's claims file in addition to his Virtual VA "eFolder," it once again is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND This matter unfortunately must be remanded for a third time. Although the Board sincerely regrets the further delay this will cause, adjudication cannot proceed without more development. I. Records VA has a duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). This duty includes making reasonable efforts to help procure pertinent records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). Reasonable efforts with respect to records in Federal custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). The Veteran shall be notified in the event of one or both of these circumstances. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). In February 2012, the Veteran's representative submitted a letter from the Social Security Administration (SSA) to the Veteran informing him that he had been found disabled as of December 2007 and would begin receiving monthly disability benefits. The representative indicated in an attached statement that the SSA's disability determination was based in part on the Veteran's ankles. A reasonable possibility therefore exists that SSA records concerning the Veteran are relevant to this matter. As such, requests must be made for them. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); see also Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); Diorio v. Nicholson, 20 Vet. App. 193 (2006); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). No such requests have been made to date, however. A remand is necessary so that a request or requests can be made. Notification to the Veteran of the inability to obtain his SSA records, whether because they do not exist or because further requests would be futile, additionally shall be made on remand if necessary. VA treatment records dated into January 2012 are of record. They document continued treatment for the Veteran's ankles. It accordingly is inferred that there may be pertinent VA treatment records dated from January 2012 to present. There is no indication that VA treatment records dated from January 2012 to present have been requested. VA has constructive notice of VA generated documents that could plausibly be expected to be part of the record. Bell v. Derwinski, 2 Vet. App. 611 (1992). Indeed, such documents are constructively part of the record before the Board even where they are not actually before the adjudicating body. Id. The aforementioned requests therefore must be made. Doing so requires remand. II. Medical Examination and Opinions "A remand by . . . the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268 (1998). Further, VA's duty to assist requires that any VA medical opinion obtained be adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Hayes v. Brown, 9 Vet. App. 67 (1996). A medical opinion is adequate when it allows the Board to perform a fully informed evaluation of the claim. Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, it must be fully informed itself. It must be based upon consideration of the Veteran's entire medical history, in other words. Stefl, 21 Vet. App. at 120; Ardison v. Brown, 6 Vet. App. 405 (1994). A medical opinion also must be supported with a rationale. Stefl, 21 Vet. App. at 120; Nieves-Rodriguez, 22 Vet. App. at 295. The Board's May 2010 remand directed that the Veteran be scheduled for a VA examination complete with opinion regarding his current bilateral ankle disability. Requirements were set forth. They included review of pertinent documents in the claims file. They also included that an opinion be rendered as to whether it is at least as likely as not that the Veteran's current bilateral ankle disability was caused or aggravated (permanently increased in severity beyond the natural progress of the disability) by a disease or injury during service. Finally, a complete rationale was to be provided for this opinion. Such rationale was to include specific reference to in-service complaints and treatment regarding the ankles. At the subsequent June 2010 VA joints examination, the examiner reviewed the Veteran's claims file. Following interview and physical assessment of him, it was opined that any relationship between his current bilateral ankle disability and an in-service injury is purely speculative. The Board's December 2011 remand noted that the aforementioned opinion was inadequate because no rationale supporting it was provided. An examination addendum, from the same examiner if available, thus was directed. Requirements for the addendum were set forth. These were the same as the previous requirements, with the addition of specifying that a complete rationale is required if it again is concluded that it cannot be determined whether the Veteran's current bilateral ankle disability is related to his service. In January 2012, the same examiner as before reviewed the Veteran's claims file. It was opined that there is no evidence supporting the Veteran's current bilateral ankle disability being caused or aggravated beyond normal progression by his service. A Stegall violation remains despite the curative efforts that have been undertaken. Indeed, the Board's remand directives have not been followed even substantially. See Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The examiner's opinion is inadequate because there still is no rationale let alone a complete rationale for it. No explanation was provided as to why the conclusion made was made, in other words. There was no specific reference to in-service complaints and treatment regarding the ankles. There further was no discussion in any other regard. While not a Stegall violation, another potential deficiency is evident. The examiner reviewed the claims file. Yet this may not equate to consideration of the Veteran's entire medical history. Attempts must be made to obtain SSA records and updated VA treatment records on remand, as discussed above. A new opinion is needed for the above reasons. A remand is required so that arrangements can be made for such an opinion. Of note is that the Veteran's representative has requested the opinion be provided by an examiner other than the one heretofore involved in this matter. Based on the above, this request is granted. The new examiner shall render an opinion following another examination to ensure it is fully informed. Accordingly, the case is REMANDED for the following action: 1. Request complete SSA disability records (all determination(s) and the medical records on which such determination(s) were based) regarding the Veteran. Any records obtained shall be associated with the claims file or "eFolder." Notice shall be provided to the Veteran if records are not obtained. Documentation regarding this paragraph shall be associated with the claims file or "eFolder" as appropriate. 2. Then review the Veteran's claims file and undertake any additional records development indicated. This shall include requesting updated VA treatment records (January 2012 to the present), if any, regarding him. Any records received shall be associated with the claims file or "eFolder." 3. After completion of the above development, arrange for the Veteran to undergo an appropriate VA medical examination regarding his ankles. The examiner shall be a qualified medical professional other than the examiner who conducted the June 2010 examination and rendered the January 2012 addendum thereto, if possible. The claims file and pertinent documents in the Virtual VA "eFolder" shall be made available to and reviewed by the examiner. The examiner then shall obtain from the Veteran a description of his relevant history and symptomatology, to include information about onset, frequency, duration, and severity as applicable. All tests, studies, or evaluations deemed necessary shall be performed. The examiner thereafter shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current bilateral ankle disability was incurred in, aggravated (permanently increased in severity beyond natural progression) by, or otherwise is related to his service. A complete and clear rationale (explanation) shall be provided for the opinion. This shall include discussion of the pertinent medical evidence (at a minimum, the in-service complaints and treatment related to the ankles) and non-medical or lay evidence. Continuity of symptomatology therefore specifically shall be addressed. If an opinion cannot be provided without resort to mere speculation, a complete rationale (explanation) for why this is so shall be provided. In so doing, it specifically shall be indicated whether or not the inability to render the opinion is the result of a need for additional information or of the limits of current medical knowledge having been exhausted. Each of the above actions shall be documented fully in an examination report. A copy of such report shall be placed in the claims file or "eFolder." 4. Finally, readjudicate the Veteran's entitlement to service connection for a bilateral ankle disability. If this benefit is not granted, he and his representative shall be provided with a supplemental statement of the case (SSOC) and afforded the requisite time period to respond. A copy of the SSOC shall be placed in the claims file or "eFolder." The Veteran has the right to submit additional evidence and argument on the issue 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). _________________________________________________ BARBARA B. COPELAND 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).