Citation Nr: 1309770 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 98-03 763A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected left ankle disability. 2. Entitlement to an evaluation in excess of 10 percent for left ankle disability. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from July 1981 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In May 2005, the Veteran testified at a Board hearing held at the RO. A transcript of the hearing testimony is in the claims file. During the course of this appeal, the Veterans Law Judge who presided at the May 2005 Board hearing left his employment with the Board. In March 2011, the Veteran declined the Board's offer to provide him with a new hearing. In November 2005, the Board reopened the Veteran's claim seeking service connection for right ankle disability. It then remanded the reopened claim, as well as the Veteran's claim seeking an increased evaluation for left ankle disability, for additional development. In April 2007, the Board denied service connection for a right ankle disability on the merits, and denied a rating in excess of 10 percent for left ankle disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2008, the Court Clerk granted a Joint Motion for Remand, vacating the Board's decision and remanding the case to the Board. In June 2009, the Board remanded the Veteran's claims for further development. In May 2011, the Board denied service-connection for right ankle disability, and denied an evaluation in excess of 10 percent for left ankle disability. The Veteran timely appealed the Board's decision to Court. In March 2012, the Court Clerk granted a Joint Motion for Remand, vacating the Board's decision and remanding the case to the Board. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is seeking service connection for right ankle disability, and an increased evaluation in excess of 10 percent for left ankle disability. He contends that that his right ankle disorder is secondary to the left ankle disorder. Specifically, he claims that he fractured his right ankle as a result of his left ankle giving way while he was being assaulted in August 1989. Alternatively, he claims that his right ankle disability has been aggravated by his left ankle disability. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). A. Additional Records Available In January 2011, the Veteran submitted a statement indicating that he received treatment for a herniated disc, at L4-L5, from 2005 through 2007, at the Midtown Medical Practice. The Board's May 2011 decision concluded that it was unnecessary for the RO to obtain these treatment records as the identified treatment did not relate to the Veteran's right or left ankle disabilities. However, the March 2012 Joint Motion noted that VA treatment records indicated that the Veteran had been approved for lower extremity physical therapy at Midtown Medical Practice as early as March 2006, and therefore, these records must be obtained. When VA is put on notice of the existence of private medical records that may be pertinent to a claim, VA must attempt to obtain those records before proceeding with the appeal. See 38 C.F.R. § 3.159(c)(1) (2009); See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the RO must, with the assistance of the Veteran, attempt to obtain copies of all of the Veteran's available treatment records from Midtown Medical Practice. B. New Evidence Submitted Without Waiver In January 2011, the RO issued its most recent Supplemental Statement of the Case (SSOC). Since that time, additional VA medical treatment records, dated from March 2012 to September 2012, were submitted by the Veteran. The Veteran has not submitted a waiver of RO consideration of this additional evidence. Accordingly, the RO must review the additional evidence received and issue an SSOC. 38 C.F.R. §§ 19.31, 20.1304 (2012). C. Service Connection for Right Ankle Disability The March 2012 Joint Motion noted that the September 2010 VA examination for joints failed to adequately address the issue of whether the Veteran's right ankle disability was directly caused by his service-connected left ankle disability. Under these circumstances, the Veteran must be scheduled for a new VA examination to determine whether his right ankle disability was caused or aggravated by his military service; and if not, whether it has been caused or aggravated (i.e., increased in severity beyond the natural progress of the condition) by his service-connected left ankle disability. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau v. Nicholson, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). D. Increased Evaluation for Left Ankle Disability Given the passage of time, the RO must obtain the Veteran's updated treatment records, and then schedule him for a new VA examination to determine the current severity of his service-connected left ankle disability. 38 C.F.R. § 3.159(c)(4)(i); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Thereafter, pursuant to the March 2012 Joint Motion, the RO should readjudicate the Veteran's increased rating claim giving consideration to the application of staged ratings. See Hart v. West, 12 Vet.App. 119, 126 (2007). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all VA and non-VA medical care providers who have treated or examined him for right and/or left ankle disabilities since his discharge from military service. The Board is particularly interested in obtaining all of the Veteran's available treatment records from the Midtown Medical Practice since January 2006; and any updated treatment records relating to either ankle since April 2010. Obtain any necessary waivers from the Veteran and attempt to obtain any records that may be pertinent to the matters on appeal. Thereafter, attempt to procure copies of all VA and non-VA records which have not previously been obtained from identified treatment sources. If any of these records cannot be obtained, a letter should be sent to the Veteran informing him of the steps taken to obtain the records, listing alternative sources, and requesting him to furnish any such records in his possession or to identify the possible location of such records. 2. Schedule the Veteran for an examination to determine the severity of his left ankle disability. The entire claims file (i.e. both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any pertinent treatment records contained in Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. All pertinent symptomatology and findings must be reported in detail and correlated to a specific diagnosis. Any indicated diagnostic tests and studies must be accomplished. The examiner should conduct range of motion studies of the left ankle (expressed in degrees). If pain on motion is observed, the examiner should comment on the extent of pain, and indicate at which point pain begins. Tests of joint motion against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use of the left ankle should be described. In addition, the examiner should indicate whether, and, if so, to what extent, the Veteran experiences likely additional functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use of the left ankle; to the extent possible, the examiner should express such functional loss in terms of additional degrees of limited motion. 3. Schedule the Veteran for a VA examination to address the etiology of his current right ankle disability. The entire claims file (i.e. both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any pertinent treatment records contained in Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. A complete rationale must be provided for any opinion expressed. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's right ankle disability either began during or was otherwise caused by his military service. If the examiner finds that this is less likely than not, the examiner is to provide an opinion as to whether it is at least as likely as not that the Veteran's right ankle disability has been caused or aggravated (i.e., the underlying disease increased in severity beyond its natural progression) by his service-connected left ankle disability. In answering these questions, the examiner is to consider the Veteran's recollections and contentions concerning his right ankle disability, objective findings on his inservice and post service treatment records, including records relating to an assault in 1989, and prior medical opinions of record. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination, and to cooperate in the development of his claims. The consequences for failure to report for an 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 any scheduled examination, documentation must be obtained and included in the claims file which shows that notice scheduling the examination was sent to the last known address and whether any notice that was sent was returned as undeliverable. 5. Review the examination reports to ensure that they are in complete compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. 6. After completing the above actions, and any other development indicated by any response received as a consequence of the actions taken above, readjudicate the issues on appeal. In adjudicating the increased rating claim, the RO must consider application of staged ratings. See Hart v. Mansfield, 21 Vet.App. 505, 511 (2007). If either claim remains denied, a SSOC, addressing all evidence received since the January 2011 SSOC, must be provided to the Veteran and his representative. After he and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ____________________________________________ DENNIS F. CHIAPPETTA 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).