Citation Nr: 1318944 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 13-01 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for residuals of a right ankle fracture, to include arthritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from March 1951 to February 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of March 2012. In March 2013, the Veteran appeared at a hearing held at the RO before the undersigned (i.e., Travel Board hearing). 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). 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 on his part. REMAND The Veteran's service treatment records are unavailable in this case. Where service treatment records are unavailable, the Board has a heightened duty to assist and obligation to explain its findings and conclusions and to carefully consider the benefit of the doubt rule. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The legal standard, however, for proving a claim for service connection is not lowered, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). There is no adverse presumption of service connection as a result of the loss of these records. Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). At his Board hearing, the Veteran testified that he had been hospitalized in the 98th Hospital in Munich, Germany, for about 2-3 days for a right ankle fracture in 1953. He stated that his cast was removed shortly before Thanksgiving, and that he had spent about 9 weeks total in casts; this would date the injury in about August or September of 1953. Clinical records from 98th General Hospital, Munich, Germany, covering that period should be requested from the appropriate records repository. The Veteran also testified that his ankle continued to bother him after service. He said he went to a specialist in Erie, who said the ankle was "full of arthritis," and that he would have to cut underneath the ankle bone and clean in it out. However, the surgery resulted in complications including scar tissue pushing against a nerve, and a staph infection which lasted a year. Although the Veteran submitted private medical records pertaining to the post-surgical follow-up, which included wound dehiscence and cellulitis, he failed to provide records of the actual hospitalization and surgery, or of the previous treatment records. The records on file indicate that the surgery was a right tarsal tunnel release, and that it was performed on or about December 27, 2007. In addition, a list of the Veteran's treatment by the physicians with Hand Microsurgery and Reconstructive Orthopaedics shows that prior to the surgery, the Veteran was treated for ankle arthropathy in September and December 2006, and for tarsal tunnel syndrome in June, August, October, November, and December, 2007. VA must attempt to obtain these records. The Veteran states that he receives treatment at the VA medical center (VAMC) in Erie, Pennsylvania. Although some records of this treatment were obtained, the search parameters were not specified, and it appears that additional records may be available. In this regard, a private medical record dated in September 2009 reported that the Veteran had been treated at the VA "last month" for cellulitis, and a note dated January 14, 2008, stated that he had gone to the VA "yesterday" for right foot pain. These and all other VA treatment records must be obtained. Finally, particularly in light of the heightened duty to assist in this case, the Veteran should be afforded a VA examination to determine whether he has a right ankle disability which is consistent with residuals of a prior fracture. 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. Request the Veteran's military clinical (inpatient) records pertaining to a hospitalization in the U. S. Army 98th General Hospital, Munich, Germany, for a period of less than a week during August and/or September 1953, from the appropriate records repository. All requests to obtain these records should be documented in the claims file. 2. Associate all VA treatment records (Erie, PA VAMC), to include emergency or urgent care, showing treatment and/or evaluations involving the lower extremities, dated prior to February 2010, and after August 2010. These should include the identified treatment in about August 2009 for cellulitis, and January 2008 for right foot pain. 3. Ask the Veteran to identify the location and treatment provider (if needed), and authorize the release of records of the following treatment: * Treatment for the right ankle/foot, including tarsal tunnel syndrome, provided by Hand Microsurgery and Reconstructive Orthopaedics from September 2006 through December 2007; * All records pertaining to the right ankle and/or foot surgery performed on or about December 27, 2007. 4. Thereafter, schedule the Veteran for an appropriate VA examination to determine whether it is at least as likely as not (50 percent or greater probability) that he currently has a right ankle disability, to include arthritis (including of the subtalar joint) which is related to a claimed right ankle fracture during service. In particular, because there are no service treatment records available, the examiner should state whether the Veteran has a current right ankle disability which is, from a medical standpoint, consistent with such a fracture. All indicated tests and studies, to include those involving the opposite side, to facilitate comparison, should be accomplished prior to the final opinion. The claims folder must be made available to the examiner for review in conjunction with the examination. The rationale for all opinions must be provided. 5. After assuring compliance with the above development, as well as with any other notice and development action required by law, the RO should review the claim on appeal. If the claim is denied, the Veteran and his representative should be provided with a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board. 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). _________________________________________________ BARBARA B. COPELAND 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).