Citation Nr: 1325436 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 08-31 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for residuals of a right ankle sprain. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June 1957 to June 1961. This matter came to the Board of Veterans' Appeals (Board) from an April 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's request to reopen his claim of service connection for residuals of a right ankle sprain. In May 2010, the Board determined that new and material evidence had been received to reopen the claim and remanded the issue on the merits. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In June 2012 correspondence from the Veteran's VA treating physician, Dr. H.K.W., DPM, reference is made to right ankle x-ray results, and Dr. H.K.W. opined that based on the x-ray results his ankle sprain he sustained in service in March 1958 has resulted in his current ankle pain and swelling. While the record contains some private treatment reports, these primarily relate to issues other than the right ankle. It thus strongly appears that any additional treatment referable to the right ankle, to include the x-rays cited above, stemmed from VA treatment. The Board notes that the most recent treatment records from the Atlanta VA Medical Center (VAMC) associated with the claims folder are dated through March 10, 2010, and the most recent treatment records from the Bay Pines, Florida VAMC are dated through February 9, 2010. VA has constructive knowledge of documents generated by VA medical facilities even if the said records are not physically part of the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). In a precedent opinion, the VA General Counsel held that when a decision is entered on or after July 21, 1992, a failure to consider records which were in VA's possession at the time of that decision, although not actually in the record before the RO, may constitute clear and unmistakable error, if such failure affected the outcome of the claim. VAOPGCPREC 12-95. As it is strongly appears that the Veteran has sought further VA evaluation for his right ankle, updated treatment records must be obtained from the Atlanta VAMC for the period from March 11, 2010, and from the Bay Pines VAMC for the period from February 10, 2010. In July 2010 and May 2011, the Veteran underwent VA examinations with the same VA examiner. On both occasions, the examiner provided a negative etiological opinion with regard to the Veteran's right ankle disability. In light of the outstanding VA treatment records and the opinion of Dr. H.K.W., the VA examiner should be requested to review the new evidence and provide an addendum opinion as to the etiology of the Veteran's right ankle disability. Accordingly, the case is REMANDED for the following actions: 1. Associate with the claims folder or Virtual VA updated treatment records from the Atlanta VAMC for the period from March 11, 2010, and updated treatment records from the Bay Pines VAMC for the period from February 10, 2010. 2. After association of the above records with the claims folder, return the Veteran's claims folder and a copy of this Remand to the VA examiner who conducted the July 2010 and May 2011 VA examinations for an addendum to the report to opine on the etiology of the Veteran's right ankle disability. Relevant records must be made available to the examiner either in the Virtual VA eFolder, or, if the eFolder is not available then via paper copies. Upon review of the entire claims folder the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) the Veteran's right ankle disability had its clinical onset during his period of service or is it otherwise related to his period of service, to include his March 1958 in-service sprained right ankle. In formulating the opinion, the examiner should reconcile any conclusions with and provide a discussion of the service treatment records; the post-service medical records; and, the June 2012 opinion of Dr. H.K.W. All opinions and conclusions expressed must be supported by a complete rationale in a report. If the VA examiner who conducted the July 2010 and May 2011 VA examinations is unavailable, please refer the case to another physician with appropriate expertise for the requested opinion, and another VA examination should be scheduled if deemed necessary for the examiner to offer an opinion. 3. After completing the requested actions, and any additional notification and/or development warranted by the record, the AMC/RO should readjudicate entitlement to service connection for residuals of right ankle sprain. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond. The Veteran and his representative have 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). _________________________________________________ ERIC S. LEBOFF 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).