Citation Nr: 1320217 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-13 572A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for residuals, arthritis of the ankles. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from December 1953 to December 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO), which denied, amongst other issues, service connection for residuals, arthritis of the ankles. In July 2009, the Veteran testified at a RO hearing. A transcript of that hearing is of record and associated with the claims folder. In January 2013, the Board remanded the instant claim for further development. In March 2013, the Veteran testified at Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. 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. REMAND The Veteran claims that service connection is warranted for residuals, arthritis of the ankles based on service incurrence. He also claims, in the alternative, that service connection is warranted for residuals, arthritis of the ankles, secondary to his service-connected pes planus, heel spurs, and/or knees. The Veteran testified at a Travel Board hearing in March 2013. At that time, he testified that his pes planus preexisted service, and as a result of marching during training, his pes planus was exacerbated, and it caused heel spurs, arthritis of the knees, and arthritis of his ankles. He also maintained that he has been wearing boots since service as a result, in order to stabilize his ankles. He has been treated by VA for his ankles since 2009 and indicated at his Travel Board hearing, that he was to be treated for his feet and ankles by podiatry in April 2013. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet.App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet.App. 611, 613. Those treatment records, related to his bilateral ankles, to include records generated in April 2013, should be obtained and associated with the claims folder. The Veteran also indicated that his residuals, arthritis of the ankles, were caused in the alternative, by his service-connected disability. Therefore, the provisions of applicable regulation, 38 C.F.R. § 3.310, are of import. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(a)(b). That regulation permits service connection not only for disability caused by service- connected disability, but also for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2012). See also Allen v. Brown, 7 Vet.App. 439, 448 (1995). 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. Obtain all of the Veteran's VA treatment records, from 2009 to the present, to include specifically, the April 2013 treatment record from podiatry at Hines VA Medical Center, for treatment of his feet and his ankles. These records should be associated with the claims folder. 2. After the above development has been completed and all outstanding records have been associated with the claims file, the Veteran should be scheduled for a VA orthopedic examination. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2012).) All indicated studies should be performed. After examination of the Veteran and review of the claims folder, the examiner should appropriately diagnose the Veteran's bilateral ankle condition. Thereafter, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (probability of 50 percent or greater) that: The Veteran's service-connected pes planus, bilateral heel spurs, and/or bilateral arthritis of the knees, caused or aggravated his residuals, arthritis of the ankles. If it is determined that aggravation beyond the natural progress of the bilateral ankles exists, the examiner should be asked to identify the baseline level of severity of the symptoms prior to aggravation and the level of severity of symptoms due to service-connected aggravation. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The claims file must be made available to the examiner for review and the examiner should indicate in his/her report whether or not the claims file was reviewed. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ F. JUDGE FLOWERS 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).