Citation Nr: 1324410 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-12 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a right ankle disability, to include right ankle tendonitis and degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The appellant served on active duty from April 1989 to May 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In May 2013, the appellant testified at a Videoconference hearing before the undersigned. A copy of the hearing transcript is of record. From the date of the hearing, the record was held open for 60 days in order to allow for the submission of additional evidence. 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 appellant essentially contends that he has a current right ankle disability, to include tendonitis and degenerative joint disease, that is related to a right ankle injury sustained during service in July 1990 with complete medial subtalar dislocation. His testimony and statements of record suggest that he has had chronic right ankle pain and swelling since his discharge from active service. Currently, there is no medical evidence of record showing complaints, findings, or diagnosis pertaining to the right ankle dating at any time during the period dating from the Veteran's discharge from active service in 1993 to 2008. During a March 2004 VA mental health consultation, however, it was noted that his private medical physician at that time was Dr. A. In addition, during a January 2008 VA ambulatory care appointment, it was noted that the appellant had a private primary care physician at Kaiser Permanente. As these identified records may contain incidental findings relevant to the claim on appeal, an effort should be made to obtain them. Also, to ensure that the record is complete, any ongoing VA treatment records dating since March 2011 should be obtained and associated with the claims file. If and only if the records requested herein show complaints, findings, or diagnosis pertaining to the claimed right ankle disability dating prior to 2008, then an addendum etiological opinion must be obtained from the examiner who conducted the December 2008 VA examination or another qualified examiner if she is unavailable, to ensure that the complete history of the claimed disability has been reviewed and considered. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and ask him for his assistance in obtaining outstanding records of pertinent private treatment for the claimed disability dating since his discharge from active military service. In particular, ask him to submit a necessary release for treatment records for Dr. A as alluded to during a March 2004 VA mental health evaluation and Kaiser Permanente as alluded to during a January 2008 VA ambulatory care appointment. All correspondence, as well as any treatment records obtained, should be made a part of the claims folder. If private treatment is reported and those records are not obtained, the appellant and his representative should be provided with information concerning the negative results and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159. 2. Obtain and associate with the claims file all outstanding records of VA treatment dating since March 2011. All records/responses received should be associated with the claims file and all efforts to obtain records should be fully documented. The facility must provide a negative response of records are not available. 3. If and only if the additional records requested herein show complaints, findings, or diagnosis pertaining to the claimed right ankle disability dating prior to 2008, then an addendum etiological opinion must be obtained from the examiner who conducted the December 2008 VA examination or another qualified examiner if she is unavailable. Specifically, the examiner should indicate whether it is at least as likely as not (50 percent or greater) that the appellant's right ankle disability, to include tendonitis and degenerative joint disease, is related to his military service, to include his in-service right ankle injury. 4. After completing the above, and any other development deemed necessary, to include obtainment of an addendum opinion (if necessary as described above) readjudicate the appellant's claim for service connection for a right ankle disability, to include tendonitis and degenerative joint disease. If the benefit sought on appeal is not granted, provide the appellant and his representative with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ MICHAEL LANE 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).