Citation Nr: 1316033 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 08-13 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral ankle disorder (claimed as chronic ankle pain), to include as secondary to service-connected bilateral pes planus. REPRESENTATION Appellant represented by: Ronald C. Sykstus, Attorney at law ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from March 1962 to February 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By that rating action, the RO, in part, denied service connection for a bilateral ankle disorder (claimed as chronic ankle pain), to include as secondary to service-connected bilateral pes planus. The Veteran appealed this rating action to the Board. In a December 2010 decision, the Board, denied service connection for a bilateral ankle disorder (claimed as chronic ankle pain), to include as secondary to service-connected bilateral pes planus disability and prostate cancer. The Veteran appealed the Board's denial of these claims to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 Memorandum, the Court affirmed the Board's decision as to the denial of service connection for prostate cancer; and vacated its denial for service connection for a bilateral ankle disorder (claimed as chronic ankle pain), to include as secondary to service-connected bilateral pes planus. The Court remanded the latter issue to the Board for action consistent with its decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As noted above, in a December 2010 decision, the Board denied the Veteran's claim for service connection for a bilateral ankle disorder (claimed as chronic ankle pain), to include as secondary to service-connected bilateral pes planus. The Veteran appealed this decision to the Court. In its August 2012 Memorandum Decision, the Court found the Board's determination that the June 2007 VA examinations of the Veteran's ankles and feet were adequate to evaluate the Veteran's claim to be clearly erroneous. The Court found the June 2007 VA examinations of the Veteran's ankle and feet to have been inadequate for the following reasons: (i) The June 2007 feet and ankle examiners reached opposing conclusions regarding the current status of any ankle disorder. For example, the June 2007 ankle examiner found no history of, or any current, ankle symptoms, as opposed to the June 2007 VA feet examiner, who indicated that the Veteran had ankle edema and "pain with forced dorsiflexion of ankle at posterior calcaneus insertion of Achilles;" (ii) In accordance with its holding in McLain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court found that neither the June 2007 ankle or feet examiner discussed whether the Veteran had an ankle disorder from the time he filed his initial claim for VA compensation for this disability in May 2004; (iii) The June 2007 feet examiner failed to explain why a diagnosis of any ankle disorder could not have been made despite clinical findings of ankle swelling (citing, Nieves-Rodriguez v. Peake, 22; Vet. App. 295, 301 (2008); (iv) The June 2007 VA feet examiner failed to provide any explanation for his conclusion that the Veteran's ankle edema was not caused by or a result of his service-connected flat feet; and, (v) Although the June 2007 VA feet examiner noted that the Veteran's complaints and physical examination findings were consistent with plantar fasciitis and heel spur syndrome, he failed to provide an opinion as whether either one of these disabilities were related to the service-connected pes planus. In light of the above, the claim for service connection for a bilateral ankle disorder (claimed as chronic ankle pain), to include as secondary to service-connected bilateral pes planus is remanded for further development and adjudication. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims files, that have treated his claimed bilateral ankle disability. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims files, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 2. After any additional private and/or VA medical records of the Veteran are obtained and associated with the claims files pursuant to directive 1, the Veteran should be scheduled for a VA examination by an appropriate specialist. The purpose of the examination is to determine the etiology of the Veteran's claimed bilateral ankle disorder. The claims files must be made available to and pertinent documents therein reviewed by the examiner in connection with the examination. Moreover, a notation to the effect that this record review took place must be included in the examination report. All studies or tests deemed necessary by the examiner should be performed. Upon review of the Veteran's claims folders and after a thorough examination of the Veteran's ankles, the examiner should provide a well-reasoned opinion, to the following question: (i) Is there evidence of a chronic bilateral ankle disability at any time since the Veteran filed his initial claim for VA compensation for this disability in February 2004? The examiner must state why or why not a chronic bilateral ankle disability has or has not been established since February 2004. If a chronic bilateral ankle disability is found, the examiner must state whether it is at least as likely as not (i.e., a 50 percent probability or greater) to have been incurred in, aggravated, or due to an in-service event, or to have its onset during military service, or manifested to a compensable degree within one year of service discharge? (ii) If the examiner does not find any bilateral ankle disability, if present, to be directly related to a period of active military service, then he or she must provide an opinion as to whether it was permanently aggravated (permanently worsened beyond its natural progression) by the service-connected bilateral pes planus? If the examiner determines that the Veteran's bilateral ankle disability was aggravated (i.e., permanently worsened beyond its natural progression) by the service-connected bilateral pes planus, he or she should identify the percentage of disability that is attributable to the aggravation, if possible. (iii) In offering these opinions the examiner must review all evidence of record. Specifically, but not limited to, February 2004 and September 2006 VA treatment reports containing an assessment of foot and ankle pain and reflecting that the Veteran had ankle swelling that was secondary to medication, respectively; June 2004 VA feet examination report reflecting that the Veteran was tender on palpation of the ankles and on flexion of the ankle joint; and June 2007 VA orthopedic and feet examination reports containing the examiners' opposing conclusions regarding the then current status of the Veteran's ankle disorder. For example, the June 2007 VA orthopedic examiner found no ankle symptoms or pathology on examination, as opposed to the June 2007 VA feet examiner who noted ankle edema and pain on forced dorsiflexion of the ankles at the posterior calcaneus insertion of the Achilles. (See June 2007 VA orthopedic and feet examination reports). The examiner must also consider the Veteran's statements regarding the onset and/or chronicity of his ankle symptoms. All findings and conclusions must be set forth in a legible report. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resort to mere speculation, such should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. Then, readjudicate the issue of service connection for a bilateral ankle disorder (claimed as chronic ankle pain), to include as secondary to the service-connected bilateral pes planus. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, and should be given an opportunity to respond. [Continued on Next Page] 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). _________________________________________________ JONATHAN B. KRAMER 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).