Citation Nr: 1310068 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 12-01 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a left ankle disability, to include arthritis. REPRESENTATION Appellant (Veteran) represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and JWS, Jr. ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from March 1954 to March 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In August 2012, the Board remanded this matter for additional development. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system, and notes that no additional evidence has been added to the claims file since the supplemental statement of the case (SSOC) issued in February 2013. In July 2012, the Veteran and JWS, Jr. provided testimony at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Based upon an additional review of the record, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. 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). During the July 2012 video hearing, the Veteran expressed an interest in claiming service connection for a right ankle disorder. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board has no jurisdiction over it. The issue is therefore referred to the AOJ for appropriate action. REMAND In August 2012, the Board remanded this matter so that additional development could be conducted with regard to outstanding treatment records. The Board is satisfied with the additional efforts conducted by the RO/AMC in this regard. Based on the current state of the record, however, an additional remand is warranted. The Board finds that, based on multiple lay and medical statements of record, the Veteran should be afforded a VA compensation examination into his claim for service connection. VA's duty to assist includes a duty to provide a medical examination or to obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). In a claim for service connection, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates that the claimed disability may be associated with in-service injuries for the purposes of a VA examination). Private and VA medical treatment record document that the Veteran has a current left ankle disorder. Certain evidence of record indicates that he injured his left ankle during service, moreover. The Veteran has asserted in multiple statements of record that he injured his left ankle during service in 1955, and was treated as an inpatient for several days at an army hospital. He also claims to have received post-service treatment at an army hospital in the 1960s. VA has attempted to retrieve service treatment records (STRs) reflecting in-service treatment, and post-service treatment records reflecting treatment in the 1960s at an army hospital. As detailed by March 2010 and November 2012 memoranda of record, however, these records are unavailable, and may have been destroyed while in possession of the government. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (where it appears that a veteran's service records are incomplete, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, is heightened). Nevertheless, the record contains a July 2012 letter of record from the Veteran's treating physician who supported the Veteran's claim to experiencing a left ankle injury in service, stating that he "has a history of a fracture of his left ankle in 1955 while serving in the military" and currently has "evidence of a moderate posttraumatic arthritis involving the left ankle." Based on this evidence, the Veteran's current disorder may be associated with service. See McLendon, supra. The Board must also note however that certain STRs are of record, including reports of medical examination and history dated in January 1957, which were conducted just prior to the Veteran's separation from active service in March 1957. These reports are entirely negative not only for the left ankle injury reportedly incurred approximately 2 years earlier, but also for a chronic left ankle disability. Similarly, multiple reports of medical examination and history dated from March 1982 to May 1989, apparently conducted pursuant to the Veteran's reserve service, are entirely negative for an ankle injury or disorder. However, as the evidence indicates the current disorder may be related to service, a VA compensation examination report and opinion should be included in the claims file. See McLendon, supra. 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. Schedule the Veteran for a VA examination to ascertain the nature, extent, onset, and etiology of his left ankle disability. The examiner must review the claims file and the report must note that review. Specifically, the VA examiner should address the following: a) Provide a diagnosis for any left ankle disorder. Any necessary tests should be performed. b) State whether it is as likely as not (50 percent probability or greater) that the Veteran's left ankle disorder is related to his period of service which ended in March 1957. The examiner's attention is directed to the Veteran's lay statements of symptoms he experienced during service, and since service. Please provide a complete explanation for the opinion. 2. Then, after ensuring the examination report is adequate and undertaking any additional development action that is deemed warranted, readjudicate the claim. If the claim remains denied, issue a SSOC and allow the appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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).