Citation Nr: 1325989 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 08-09 828A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from September 1990 to June 1998. This matter is on appeal from a September 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In October 2011 decision, the Board denied the Veteran's claim for a compensable rating for residuals, right foot fracture and the claims for service connection for a left and right knee disability and remanded the claims for service connection for a left and right ankle disability for further development. Service connection was granted for residuals of a right ankle fracture in a November 2012 rating decision. Thus, as the benefit sought has been awarded in full, that issue is no longer before the Board. 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 contends that he has a left ankle disability that is related to a parachute jump during service. The Veteran's STRs show that he sustained a grade I-II ankle sprain during a parachute jump in June 1996. There are bilateral ankle complaints made by the Veteran which he attributes to his parachute jump in service. However, these records are negative for any diagnosed left ankle disability. VA treatment records include a July 2007 report which shows a complaint of left ankle pain for two days. The Veteran did not remember hurting or twisting his ankle, but was working in the yard and experienced subsequent left ankle pain. On examination, the assessment was pain, most likely a mild sprain of the medial ligament of the left ankle. The Veteran underwent a VA DBQ ankle conditions examination in April 2012 at which time he presented with a history of right ankle complaints and a broken right ankle due to an in-service airborne maneuver in 1996. He complained of bilateral ankle pain during the examination which elicited left ankle pain and tenderness. There was clearly a loss of range of motion of the ankle on testing along with there being pain on motion. X-rays also revealed small plantar calcaneal spurs and bony spurring at the posterior aspect of the calcaneus. Curiously, despite these findings, the examiner did not diagnose any left ankle disability. Alternately, he failed to explain how the findings were not relevant or sufficient to support a clinical diagnosis of a left ankle disability. Such necessitates an addendum opinion. The claims file further reflects that the Veteran receives active treatment through the VA Medical Centers (VAMCs) in Tuscaloosa and Birmingham, Alabama. However, as the claims file only includes records from those providers dated up to April 2012, any additional records from that facility should be obtained. 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 (1992). The AMC should obtain and associate with the claims file all outstanding VA records. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records related to the claimed left ankle disorder from the Tuscaloosa and Birmingham VAMCs from April 2012 to the present. Any negative responses should be noted in the file. 2. Forward the claims folder to the examiner who conducted the April 2012 VA examination for a supplemental opinion. Request that the examiner review the claims folder, and to note that such review has been accomplished. If the prior examiner is not available, or is unable to provide a supplemental opinion, forward the claims folder and a copy of this remand to another appropriate examiner(s) in order to render the requested medical opinions noted below. a. Identify/diagnose any disability of the left ankle that has existed at any time during the appeal period. If the examiner does not find that the evidence supports a diagnosis of a left ankle disability, such should be definitively stated and explained. Reference should be made to the loss of range of motion demonstrated on examination in April 2012 along with the X-ray findings that showed small plantar calcaneal spurs and bony spurring at the posterior aspect of the calcaneus. b. For any identified disability of the ankle, the examiner should then state whether it is at least likely as not (a 50 percent probability or greater) that the disability had its onset in service or is otherwise etiologically related thereto, to include documented left ankle sprain that occurred in June 1996 as well as any trauma associated with performing parachute jumps. 3. Once the above-requested development has been completed, review the claims folder and readjudicate the claim. If any benefit sought on appeal remains denied, the Veteran should be provided with a supplemental statement of the case. After the Veteran is afforded an opportunity to respond, the case should be returned to the Board for appellate review 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). _________________________________________________ MICHAEL A. HERMAN 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).