Citation Nr: 1316546 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 09-24 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a right knee disability, to include as secondary to a right ankle disability. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to service connection for a bilateral eye disability, to include as secondary to diabetes mellitus. 5. Entitlement to service connection for osteoarthritis. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Michael J. Kelley, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty from September 1975 to March 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran's claims file is now in the jurisdiction of the Boston, Massachusetts RO. In March 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The Board notes that the Veteran excluded the issue of entitlement to a TDIU from his July 2009 VA Form 9. However, as the Veteran provided testimony on this issue at his March 2013 Travel Board hearing, the Board will assume jurisdiction over that claim. Percy v. Shinseki, 23 Vet. App. 37, 44-46 (2009). The issue of entitlement to service connection for a foot disability has been raised by the record (specifically, in a December 2011 submission), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present, there are no additional documents pertinent to this appeal in Virtual VA. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND In a January 2012 submission, the Veteran's representative noted that the Veteran "is currently treating at the Boston VA Healthcare System and Boston Medical Center." The most recent VA treatment records from the Boston VA Healthcare System that are associated with the claims file are dated in March 2008. The most recent private treatment records from the Boston Medical Center that are associated with the claims file are dated in November 2007. On remand, all updated VA and private treatment records must be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). With regard to the claim for service connection for a right ankle disability, the record reflects that the Veteran was given a Physical Profile in service for a right ankle sprain in October 1975. Post-service private X-rays of his right foot in January 2005 revealed marked degenerative change involving the joints of the right mid foot, with evidence of old fracture and partial collapse of the navicular bone (noted as suggestive of aseptic necrosis), as well as multiple ossific foci along the anterior superior aspect of the talus (noted as possibly post-traumatic or degenerative in nature). A July 2007 VA treatment record noted the Veteran's history of right ankle injury in service in 1975 as well as the Veteran's current complaints of chronic right ankle pain that had been intermittently bothersome for a number of years. A March 2008 VA treatment record noted that the Veteran was status post right ankle injury while in service in 1975, and that he had severe talonavicular arthritis. In light of the foregoing evidence, the Veteran should be scheduled for a VA right ankle examination to obtain a medical opinion with adequate supporting rationale regarding the relationship between his current right ankle disability and any incident of his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). With regard to the claim for a TDIU, such claim is considered to be inextricably intertwined with the other claims on appeal, as the evidence received in connection with the other claims could materially affect the outcome of the TDIU claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Therefore, the claim for a TDIU must be readjudicated after the other claims on appeal are readjudicated following the completion of the development requested on remand. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify all medical care providers who have treated him for his claimed disabilities since his discharge from service. After securing any necessary release(s), obtain those records, including updated treatment records from the Boston Medical Center. Any negative response must be noted in the record and communicated to the Veteran, and the Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Obtain updated treatment records from the VA Healthcare System in Boston, Massachusetts, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record. 3. After the above development is completed, schedule the Veteran for a VA right ankle examination. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Based on the examination and review of the record, the examiner is to opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current right ankle disability is related to any incident of his military service. The examiner is to specifically consider and address the Physical Profile given to the Veteran in service for a right ankle sprain in October 1975. A complete rationale for all opinions expressed must be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner is to state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. Review the claims file to ensure that all of the foregoing development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. (The TDIU issue should be readjudicated last, in light of the determinations made on the other issues and after any further development indicated has been completed.) If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review. The Veteran 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). _________________________________________________ ROBERT E. SULLIVAN 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).