Citation Nr: 1316077 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-01 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a right ankle and right foot disorder. 2. Entitlement to service connection for a left ankle and left foot disorder. ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from June 1962 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board notes that the issues on appeal were developed by the RO as claims for service connection for right ankle and left ankle disorder. However, in January 2013, the Veteran clarified that he has referred to his bilateral foot and ankle injuries interchangeably. Therefore, the issues have been rechararcterized as reflected on the title page. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. 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 law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. In this case, the Veteran has contended that he fractured his ankles aboard the USNS Gordon sometime between the end of 1965 and the beginning of 1966. His service personnel records show that he served aboard the USS Gordon from November 1965 to July 1966. In his claim received in March 2008, the Veteran explained that he broke the navicular metatarsal bones in both feet after jumping from his bunk to the dock below to undo the water source after depth charges were deployed to prevent North Vietnamese frogmen carrying explosives from sinking the ship. He claims that he has had pain in both ankles since that time. In September 2008, the Veteran explained that he was a medic during service and indicated that several physicians have told him that his current osteochondritis is related to his broken ankles in service. In January 2009, the Veteran further stated that he was the only x-ray technician aboard the ship at the time of the injury. He indicated that he x-rayed his own feet and noted that the x-rays showed non-displaced fractures of the talar bones in each foot. He stated that he was treated by Dr. B. (initials used to protect privacy), who assigned him to light duty. The Veteran explained that Dr. B. did not have time to document the injury due to the confusion surrounding the depth charges/bomb blasts and attending to injured troops. He also stated that his ankles were later x-rayed at the Oak Knoll Naval Hospital prior to his discharge in August 1966. The Veteran's DD 214 shows that he was discharged on August 12, 1966. In November 2011, the National Personnel Records Center (NPRC) indicated that there were no outpatient records for the Veteran's bilateral ankle injury at the Oak Knoll Naval Hospital, from August 13, 1966, to December 31, 1966. NPRC also confirmed that there were no inpatient records pertaining to a bilateral ankle injury prior to the Veteran's discharge from January 1, 1966, to August 12, 1966. However, it does not appear that an attempt was made to search for outpatient records prior to the Veteran's discharge on August 12, 1966. Therefore, upon remand, such records should be requested Additionally, in April 2008, the Veteran submitted authorization for VA to obtain his private treatment records pertaining to his ankles for the past ten years from Dr. T.K. However, it does not appear that any attempt has been made to obtain such records. Therefore, the RO/AMC should request the Veteran's treatment records from Dr. T.K. Moreover, the Naval History and Heritage Command confirmed that deck logs for the USNS General W.H. Gordon do not document anti-swimmer explosives or the ship being at General Quarters from June 1966 to July 1966. However, in January 2013, the Veteran requested a search of the ship's deck log in May 1966 to confirm the incident he has described at the time of his injury. As the issue is being remanded to obtain outstanding records, such a search should be conducted. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the National Personnel Records Center (NPRC) and request that a search be conducted for outpatient records dated from January 1, 1966, to August 12, 1966, at the Oak Knoll Naval Hospital for a bilateral foot and ankle disorder or injury, to include all x-ray reports 2. The RO/AMC should request that the Naval History and Heritage Command search the deck logs for the USNS General W. H. Gordon for May 1966 to determine whether there were anti-swimmer explosives or the ship being at General Quarters. 3. The RO/AMC should request written authorization from the Veteran to obtain his private treatment records since 1998 for his ankles from Dr. T.K.., as the authorization he submitted in April 2008 was only valid for 180 days. Afterwards, an attempt should be made to associate the records with the claims folder. 4. After completing these actions, the Veteran should be afforded a VA examination to determine the nature and etiology of any current foot and ankle disorders. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current diagnoses of any right foot, right ankle, left foot, and left ankle disorders that are present. For each current diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder is causally or etiologically related to the Veteran's military service, to include his alleged injury therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing the requested actions, and any additional notification and development deemed warranted, the RO/AMC should readjudicate the Veteran's claims. If the decision remains adverse to the Veteran, he should be furnished a supplemental statement of the case (SSOC) and be afforded an appropriate period of time within which to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ JESSICA J. WILLS 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).