Citation Nr: 1317416 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 09-02 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a right ankle disability, to include as secondary to service-connected chondromalacia patella of the right knee and/or Morton's neuroma of the right foot. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 1972 to January 1976, and from January 1981 to September 1997. This matter is before the Board of Veterans' Appeals (the Board) on appeal of an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied the Veteran's service-connection claim for right ankle ligament reconstruction. The Veteran disagreed with the RO's determination, and perfected an appeal as to this issue. The Veteran testified at a Travel Board hearing which was chaired by the undersigned at the Wichita RO in August 2010. A transcript of the hearing has been associated with the Veteran's VA claims folder. Although the agency of original jurisdiction (AOJ) developed the Veteran's service-connection claim as one specifically for right ankle ligament reconstruction alone, based on the Veteran's description of his symptoms and the information submitted, the Board finds that his claim reasonably encompasses a service-connection claim for any right ankle condition. Cf. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). Indeed, the record demonstrates that in addition to undergoing right ankle ligament reconstruction and arthroscopy in March 2008 to treat right ankle pain and lateral ligament instability, the Veteran has also been diagnosed with right tarsal tunnel syndrome. As such, the Board is now expanding the Veteran's original service-connection claim to include consideration of whether service connection is warranted for any right ankle disability, to include ligament reconstruction and tarsal tunnel syndrome, as per the holding in Clemons. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Veteran has claimed entitlement to service-connection for a right ankle disability. On the one hand, he argues that such may be directly related to right ankle injuries he sustained during his second period of active duty service. On the other, he claims that his right ankle disability or disabilities were either caused or aggravated by his service-connected right knee chondromalacia patella and/or his right foot Morton's neuroma on a secondary basis. Before the Board can adjudicate this service-connection claim on its merits, additional development is required. I. Veterans Claims Assistance Act of 2000 (VCAA) notice Although the AOJ provided the Veteran notice of the evidence required to substantiate a service-connection claim on a direct basis in a May 2008 letter, it does not appear that any notice of the evidence required to substantiate a claim on a secondary basis has been sent to the Veteran. Because the statutory and regulatory provisions addressing secondary service-connection claims, outlined in 38 C.F.R. § 3.310, are different from the provisions addressing direct service-connection claims, additional notification action under the VCAA is required with respect to the Veteran's current appeal. 38 C.F.R. § 3.159(b) (2012). II. Outstanding treatment records At his August 2010 hearing, the Veteran indicated that he receives continued treatment for his right ankle disability with the 22nd Medical Group at McConnell Air Force Base. See the August 2010 hearing transcript, pages 7-8. Notably however, the only medical reports of record obtained from this facility date from April 2007 to October 2007. In addition, with respect to his treatment at VA, the Board observes that the Veteran's records from the Wichita VA Medical Center (VAMC) have been obtained only through August 2012. The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency and will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159(c)(2). Accordingly, on remand, the agency of original jurisdiction (AOJ) must make attempts to obtain outstanding medical records from the facilities identified above and, if unavailable, the Veteran should be provided with notification of their unavailability in accordance with 38 C.F.R. § 3.159(e)(1). III. VA examination The Veteran has not been afforded a VA examination to assess the nature and etiology of his right ankle disability or disabilities. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court made clear that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The Veteran has presented medical evidence of current orthopedic and neurological diagnoses affecting his right ankle to include right ankle ligament instability and tarsal tunnel syndrome. Indeed, the Veteran underwent right ankle ligament reconstruction and arthroscopy in March 2008 to treat his ongoing right ankle pain and lateral ligament instability. He also underwent a right ankle tarsal tunnel release in March 2008 in an effort to relieve his tarsal tunnel syndrome symptoms. See the Veteran's March 26, 2008 Operative Report. MRI imaging taken in March 2008 reveals a "minute area of diminished signal in the lateral aspect of the talar dome," which "could be a sequela of a prior trauma." Thus, the first element of McLendon is satisfied. Additionally, the Veteran is competent to state that he sprained his ankle on multiple occasions during his long period of active duty service. These assertions, if credible, satisfy the element of McLendon requiring an in-service injury or disease of the right ankle. The Board notes that the Veteran's service records do include documentation of treatment for right knee and ankle swelling, a right anterior tibialis strain, shin splints with limitation of motion of the right ankle, and a history of right ankle sprain. See the Veteran's in-service treatment reports dated January 5, 1990, May 6, 1991 (both the Physical Therapy Consultation and the Physical Profile Serial Report) and May 21, 1991. The Board recognizes that in May 2008 the Veteran submitted his own copies of some of his service treatment records that also indicate treatment for a right ankle sprains in May 1984, October 1992 and December 1992. These records will be specifically discussed below. The Veteran has recently testified that his right ankle pain symptoms have remained consistent since he initially injured his ankle in service to the present day. See the August 2010 hearing transcript, pages 5-6. He has also submitted a medical opinion from Dr. J.W.F. suggesting that the Veteran's right ankle problems "could" be related to previous injuries. See the June 2008 letter from Dr. J.W.F., page 2. This evidence suggests a possibility that there may be a link between an alleged event in service and the Veteran's current right ankle medical problems, thus satisfying the third Mclendon element. The Board notes that Dr. J.W.F.'s opinion is couched solely in terms of possibility and not probability, and is therefore too speculative to support the Veteran's claim on its own merit at this time. Further, Dr. J.W.F. did not specify whether the "previous injuries" he refers to were indeed the Veteran's claimed in-service injuries to the right ankle, or any subsequent post-service right ankle injury, to include a documented right ankle sprain sustained on March 13, 2000. See the handwritten note on the Veteran's Payment History worksheet from the W.C., received by VA in May 2008. The claims file includes no other medical opinion addressing whether the Veteran's right ankle disabilities are directly related to his stated in-service injuries. In addition, with respect to secondary service-connection, although the Veteran has competently testified that he puts more weightbearing stress on his right ankle because of his service-connected Morton's neuroma of the same leg (also satisfying the third Mclendon element), further clarification is necessary to determine whether any causation or aggravation of the ankle occurred beyond its natural progression due to his service-connected disabilities. The Board determines that a VA examination and opinion is necessary in this case, pursuant to the low threshold set forth in McLendon. As alluded to above, in May 2008 the Veteran submitted multiple copies of his service treatment records to VA for consideration in support of his claim, some of which support a finding that the Veteran may have endured a right ankle injury in-service. At this juncture however, the Board wishes to highlight three of the Veteran's submissions in particular, which include notations and findings that appear inconsistent with the notations and findings documented on the exact same reports as obtained by VA from the Records Management Center in November 2001. Indeed, VA obtained an Emergency Care and Treatment report dated May 25, 1984 from the Records Management Center that specifically identifies complaints of an "injured L (left) ankle." In May 2008, the Veteran submitted a copy of the exact same May 25, 1984 report. Notably however, it appears that the "L" indicating an injured "left" ankle was made to look like an "R" to signify the presence of an injured "right" ankle. Similarly, two Physical Profile Serial Reports dated October 5, 1992 and December 7, 1992, respectively obtained by VA from the Records Management Center in 2001, do not identify treatment for any right ankle injury in the "Remarks" section of each report. However, copies of these records submitted by the Veteran in May 2008 do include notation indicating the presence of a right ankle strain in their respective "Remarks" sections. Most significantly, with respect to the December 7, 1992 treatment report in particular, it appears that the information contained in the "Individual Defects/Restrictions" box was changed in its entirety, at one time noting problems exclusively with the Veteran's left rib and chest, but on the copy submitted by the Veteran, noting the presence of right ankle pressure. At this time the Board makes no judgment as to the veracity of the information contained in any of these above-referenced documents, nor does the Board make any judgment about how or why there appear to be inconsistencies between these sets of records. However, for the purposes of obtaining thorough and complete medical opinions as to the etiology of the Veteran's current right ankle disabilities, the Board requests that the VA examiner, in formulating his or her opinions, provide one opinion that considers the Veteran's May 2008 submissions to be accurate reflections of his in-service injuries, and one that simply disregards these three submissions, and is based solely on the other evidence of record. As discussed above, it is noteworthy that there is evidence of record other than these recently-submitted copies that appears to demonstrate that the Veteran may have indeed experienced right ankle problems during his long period of service. Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ should send the Veteran an updated notice letter in compliance with the VCAA addressing his now expanded service-connection claim for any right ankle disability, to include right ankle ligament reconstruction and tarsal tunnel syndrome. This letter should also inform the Veteran of the information and evidence that is necessary to substantiate his service-connection claim on both a direct and secondary basis, in terms of 38 C.F.R. §§ 3.303 and 3.310, and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The AOJ should also request that the Veteran identify any additional medical treatment he has received for his right ankle disability or disabilities. The AOJ should attach multiple copies of VA Form 21-4142, Authorization and Consent to Release Information, and ask the Veteran's representative to complete and return these releases, or have the Veteran complete and return these releases, so that VA can obtain any private treatment records on his behalf. Upon return of any required authorization, the AOJ should take appropriate steps to secure copies of any such treatment reports identified by the Veteran which are not in the record on appeal, to include any existing relevant updated VA treatment records from the Wichita VAMC, as well as treatment reports from the 22nd Medical Group at McConnell Air Force Base. In light of recent changes to 38 U.S.C.A. § 5103A(b)(2)(B), should the Veteran specifically request that VA obtain private treatment records on his behalf, two attempts should be made to obtain these treatment records, unless a formal finding can be made that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). Efforts to obtain these records should be memorialized in the Veteran's VA claims folder. If any records are unavailable, the Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 2. After completion of the development described in Paragraph (1) above, the AOJ should then schedule the Veteran for appropriate VA examination for the purposes of assessing the nature and etiology of his claimed right ankle disabilities. The entire claims file (i.e. both the paper claims file and any relevant medical records contained in Virtual VA), and a copy of this REMAND should be made available and be reviewed by the examiner in conjunction with his or her respective examination, and the examiner should confirm that such records were available for review. The examiner should provide opinions as to the following: a.) For each diagnosed orthopedic or neurological right ankle disability, the examiner should determine whether it is at least as likely as not (50 percent or greater probability) that the disability is related to the Veteran's active duty service, to include his documented treatment for in-service right ankle swelling, right anterior tibialis strain, shin splints with limitation of motion of the right ankle, and a history of right ankle sprain. See the Veteran's in-service treatment reports dated January 5, 1990, May 6, 1991 (both the Physical Therapy Consultation and the Physical Profile Serial Report) and May 21, 1991. For the purposes of this opinion, the examiner should also accept as true that the documentation provided by the Veteran in May 2008 containing copies of his service treatment records dated May 25, 1984, October 5, 1992 and December 7, 1992 are valid, and accurately demonstrate that the Veteran received treated for an in-service right ankle strain on each date. b.) The examiner should then answer the exact same question as above-that is, whether it is at least as likely as not that any diagnosed ankle disability is related to the Veteran's active duty service-without consideration of the copies of service records dated May 25, 1984, October 5, 1992 and December 7, 1992 submitted by the Veteran in May 2008. In other words, the examiner should specify whether he or she would come to the same conclusions as reached in response to the inquiry in Paragraph (2)(a) above, even when these three service record copies are completely disregarded. The Board emphasizes that even without consideration of these three copies of in-service treatment reports, the record does include other documentation suggesting that the Veteran sought treatment in service for in-service right ankle swelling, right anterior tibialis strain, shin splints with limitation of motion of the right ankle, and a history of right ankle sprain, as referenced above. c.) In addition to providing answers to both (2)(a) and (2)(b) above, for each diagnosed orthopedic or neurological right ankle disability, the examiner must also determine whether it is at least as likely as not (50 percent or greater probability) that the disability was caused or aggravated beyond its natural progression by his service-connected chondromalacia patella of the right knee and/or his service-connected Morton's neuroma of the right foot. The examiner should comment upon the Veteran's assertion that he has increased weightbearing stress on his right ankle due to these disabilities, as well has his observation of shooting pains stemming from his foot, through the right ankle. See the August 2010 hearing transcript, pages 3-5. All opinions must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. 3. After accomplishing the above, as well as any other development deemed appropriate based on the information obtained on remand, the AOJ should review all the evidence of record (to include all records associated with the Veteran's Virtual VA claims folder) and readjudicate the issue on appeal on both a direct and secondary basis. If the claim on appeal denied, a Supplemental Statement of the Case should be furnished to the Veteran and his representative, and an appropriate period of time should be provided for response. 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). _________________________________________________ B. C. MORTON Acting 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).