Citation Nr: 1319545 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-46 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left ankle disability, and if so, whether service connection is warranted. 3. Entitlement to a compensable rating for a left lower leg scar, status post laceration. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from January 1981 to June 1985 and from August 1989 to February 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Indianapolis, Indiana. In February 2010, the Veteran testified at a Decision Review Officer hearing. The issue of entitlement to service connection for a left ankle disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have hearing loss for VA compensation purposes. 2. In an April 2003 rating decision, the agency of original jurisdiction (AOJ) denied service connection for a left ankle disability. 3. The evidence received since the April 2003 decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left ankle disability. 4. The Veteran has a painful left lower leg scar that does not result in limitation of function or part. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. The April 2003 rating decision that denied service connection for a left ankle disability is final. 38 U.S.C.A. §§ 7104, 7105(a) (West 2002); 38 C.F.R. § 20.1100 (2012). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a left ankle disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. The criteria for an evaluation of 10 percent, but no higher, for a left lower leg scar have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the AOJ, even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in January 2008. The Veteran has been afforded a hearing before a RO Decision Review Officer (DRO) in which he presented oral argument in support of his hearing loss and left lower leg scar claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the DRO who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the DRO did not note the bases of the prior determinations or the elements that were lacking to substantiate the hearing loss and left lower leg scar claims. The DRO did not ask specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for service connection for hearing loss and an increased rating for left lower leg scar. The DRO also did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the DRO hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The claimant was provided the opportunity to present pertinent evidence. The record contains service treatment records, as well as records of medical treatment received from VA treatment providers, and the Veteran was provided with VA examinations in connection with his present claims. Findings from the examination reports are adequate for the purposes of deciding the claims on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, the Board observes that the Veteran has not reported that his hearing loss or left leg scar disability has worsened since the most recent VA examinations. As such, a remand is not required solely due to the passage of time since the March 2008 VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria & Analysis Bilateral Hearing Loss Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("(A) medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Service treatment records show that the Veteran complained of hearing loss on an October 2002 Report of Medical History. The records, however, are negative for clinical findings of a hearing loss disability consistent with 38 C.F.R. § 3.385, including upon audiological examination in October 2002 conducted prior to the Veteran's separation from service in February 2003. Post-service VA treatment records do not reflect audiometric findings that establish a hearing loss disability consistent with 38 C.F.R. § 3.385. The Veteran was afforded a VA audiological examination in March 2010 in connection with his current claim. Testing showed pure tone thresholds to be as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 5 10 10 LEFT 5 5 5 15 15 Speech recognition scores using Maryland CNC testing were 100 percent in the right and left ears. The examiner diagnosed clinically normal hearing in the right ear and hearing loss not disabling per 38 C.F.R. § 3.385 in the left ear. Based on the Board's review of the evidence, service connection for a bilateral hearing loss disability is not warranted. Although various audiometric test results in service showed some degree of hearing loss in the Veteran's hearing thresholds, none of the reported thresholds met the regulatory requirements for establishing a hearing loss "disability," according to VA regulations set forth at 38 C.F.R. § 3.385. In other words, the Veteran is not shown to have had a hearing loss disability (for VA compensation purposes) in service. When audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that a current hearing loss disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Here, there is no evidence of a current bilateral hearing loss disability. The March 2010 VA audiologic examination results do not reflect a current bilateral hearing loss disability for VA purposes, as defined by 38 C.F.R. § 3.385, as auditory thresholds were not 26 decibels or more in at least three of the frequencies, and the speech recognition score was 100 percent bilaterally. There are no other auditory findings sufficient to establish the same and the Veteran is not competent to show that he has a hearing loss disability pursuant to 38 C.F.R. § 3.385. Thus, notwithstanding the Veteran's assertions that he has a current bilateral hearing loss disability, the objective audiometric evidence that is available reflects that he does not have a current hearing loss disability for VA purposes. See Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for a bilateral hearing loss disability is denied. Left Ankle Disability Given the Board's favorable disposition to reopen the claim for service connection for a left ankle disability, the Board finds that no discussion of VCAA compliance is necessary at this time. In a rating decision in April 2003 the RO denied the Veteran's initial service connection claim for a left ankle disability on the grounds that no permanent or residual or chronic disability subject to service connection was shown by the service treatment records or demonstrated by VA predischarge examination. After appropriate notice of this decision and of his appeal rights, the Veteran did not appeal, and no evidence pertaining to the issue was either physically or constructively received by VA within one year of the April 2003 rating decision. The April 2003 decision is therefore final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.302; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In May 2007 the Veteran filed a claim to reopen, which was denied by the RO in the April 2008 rating decision on appeal. The April 2003 rating decision is the last final decision on the merits. The claim decided therein is not subject to revision on the same factual basis. 38 U.S.C.A. § 7104. In order to reopen the claim, new and material evidence is needed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. At the time of the April 2003 rating decision the evidence consisted of service treatment records (which relate complaints of a left ankle injury), and a December 2002 pre-discharge VA examination in which the examiner diagnosed status post left ankle inversion injury on multiple occasions with current instability with exacerbation of residuals during progressive ambulation. Evidence added to the record since the April 2003 rating decision includes February 2010 testimony from the Veteran that he has had a constant left ankle problem since service. The Veteran testified that although he has not sought for care for the condition, he has treated it with over-the-counter medications. This evidence is new since it was not of record in 2003 and material as it relates to an unestablished fact necessary to substantiate the claim for service connection for a left ankle disability; namely, evidence of in-service incurrence. Moreover, it directly addresses the reason for the prior denial and must be presumed credible for the purpose of reopening the claim. Justus, 3 Vet. App. at 512-13. New and material evidence having been presented, the claim is reopened. 38 C.F.R. § 3.156(a); see also Shade. Left Lower Leg Scar An April 2003 rating decision granted service connection for scar, status post laceration left lower leg, and assigned a noncompensable disability rating effective March 1, 2003. The Veteran did not file a notice of disagreement related to the April 2003 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the April 2003 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012). The Veteran filed the increased rating claim on appeal in October 2007. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). If a Veteran appeals a rating decision seeking an increased rating for a disability for which service connection has already been established, such as here, then the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). More recently the Court has held that even in a claim for an increase in the level of an already service-connected disability, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus in deciding the claim below, the Board has considered whether different ratings may be warranted for different time periods based on the evidence of record. The Veteran's statements describing the symptoms of his service-connected left lower leg scar disability are deemed competent evidence, and these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. 38 C.F.R. § 3.159 (2012). The rating criteria for scar DCs were twice revised, first in August 2002 and then in October 2008. See 67 Fed. Reg. 49,590 -595 (effective August 30, 2002); 73 Fed. Reg. 52710 (effective October 23, 2008). However, because the Veteran filed his increased rating claim after August 30, 2002, and did not specifically request consideration under the most recently amended ratings, only the criteria in effect from August 30, 2002, to October 23, 2008, need be considered in this instance. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (for claims filed after August 30, 2002, and prior to October 23, 2008). The Veteran underwent a VA examination in March 2008. He reported pain with weather changes in the bone underneath the scar, but did not report any problems with the scar itself. He stated that there was pain in the left leg after extended periods of standing. Upon physical examination, the left lower leg scar had a maximum width of 0.3 centimeters and a maximum length of 5.0 centimeters. There was tenderness on palpation. There was no adherence to underlying tissue, limitation of motion or loss of function, underlying soft tissue damage, or skin ulceration or breakdown over scar. At the February 2010 DRO hearing, the Veteran testified that there was missing tissue, as well as daily pain in the scar. DC 7800 and DC 7801 evaluated disfigurement and scars of the head, face, and neck, of which the Veteran has none, as noted above. DC 7802 provided a 10 percent rating for scars, other than head, face, or neck, that were superficial and that did not cause limited motion, with an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7802 (2002). All the evidence of record shows that the Veteran's scar does not have an area or areas of 929 square centimeters or greater. For example, the March 2008 VA examiner noted that the scar had a maximum width of 0.3 centimeters and a maximum length of 5.0 centimeters. DC 7803 provided that a superficial, unstable scar warranted a 10 percent rating. 38 C.F.R. § 4.118, DC 7803 (2002). All of the medical evidence shows that the Veteran's scar is not unstable, nor has the Veteran asserted that it is unstable. For example, at the March 2008 VA examination, the Veteran did not report any problems with the scar itself. Effective August 30, 2002, DC 7805 evaluated scars on limitation of function of part affected. 38 C.F.R. § 4.118, DC 7805 (2002). Under DC 7805, the Veteran is only entitled to a compensable rating on limitation of function of the part affected. The March 2008 VA examiner noted that the scar did not result in limitation of motion or loss of function. Thus, the Board finds that the Veteran is not entitled to a compensable rating for right lower leg scar under DC 7805. 38 U.S.C.A. § 5107(b)(West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In reaching this decision, the Board has considered the Veteran's statements that he experienced pain, throbbing, and swelling. The Veteran does not report that his scar causes limitation of function. Therefore, his statements are not contrary to the objective VA examination report that found no limitation of function. DC 7804 provided that a 10 percent disability evaluation was warranted for superficial scars that are painful on objective demonstration. 38 C.F.R. § 4.118, DC 7804 (2002). At the February 2010 DRO hearing, the Veteran reported daily pain with the scar. Thus, a 10 percent disability evaluation is warranted for the Veteran's left lower leg scar. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's left lower leg scar is linear, stable, painful and smaller than 144 square inches. These manifestations are contemplated in the applicable rating criteria. The Board does not find that the Veteran has described functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, his description of scar symptomatology is consistent with the degree of disability addressed by such evaluation. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of an extraschedular rating is not warranted. ORDER Service connection for bilateral hearing loss is denied. New and material evidence having been received, the claim of entitlement to service connection for a left ankle disability is reopened. Subject to the laws and regulations regarding monetary benefits, a disability rating of 10 percent, and no more, for left lower leg scar is granted. REMAND Reopening the left ankle claim does not end the inquiry; rather, consideration of the claim on the merits is required. However, after a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim for service connection for a left ankle disability on the merits. Service treatment records dated in January 1983 reflect that the Veteran was diagnosed with left ankle cellulitis. A July 1989 Report of Medical Examination for reenlistment purposes reflects that the Veteran's lower extremities were clinically evaluated as normal. In August 1999, the Veteran was assessed with an inversion injury to the left ankle while running. The Veteran was afforded a VA examination while still on active duty in December 2002. The examiner diagnosed status post left ankle inversion injury on multiple occasions with current instability with exacerbation of residuals during progressive ambulation. In light of the Veteran's competent and credible report of having recurrent left ankle problems since service, the Board finds that he must be afforded a current VA examination to determine if he has a left ankle disability. Relevant ongoing medical records should also be requested. 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). Accordingly, the case is REMANDED for the following actions: 1. Notify the Veteran that he may submit lay statement from individuals that have first-hand knowledge, and/or who were contemporaneously informed of his left ankle symptoms, to include any information regarding the onset and/or chronicity of these symptoms since service. He should be provided an appropriate amount of time to submit this lay evidence. 2. Obtain treatment records from the Indianapolis VA Medical Center dating from May 2010 to the present. If no records are available, documentation stating such should be incorporated into the claims file and the Veteran notified of such. 3. After associating any pertinent, outstanding records with the claims folder, schedule the Veteran for appropriate VA examination, to determine the current nature, onset and etiology of any left ankle condition found to be present. The claims folder must be made available to and reviewed by the examiner. All necessary tests should be conducted and all left ankle disabilities must be identified. The examiner must state whether it is at least as likely as not that any left ankle disability is related to or had its onset in service. In offering this assessment, the examiner must discuss the January 1983 diagnosis of left ankle cellulitis and August 1999 assessment of inversion injury to the left ankle while running. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 4. Then readjudicate the appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the claims file is returned to the Board. The appellant 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs