Citation Nr: 1326304 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-21 088A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a left ankle condition, to include as due to undiagnosed illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from January 2001 to January 2005 and from August 2008 to September 2009, to include service in the Southwest Asia theater of operations during the Persian Gulf War. He had additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, in which the RO denied service connection for a left ankle condition. In January 2012, the Veteran requested a hearing before a Veterans Law Judge via videoconference. A June 2012 letter advised him that his hearing was scheduled for July 2012. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not subsequently requested rescheduling of the hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The claim for service connection for a left ankle condition has previously been adjudicated as a claim for direct service connection. In light of the complaints of ankle pain (joint pain) and the Veteran's service in the Southwest Asia theater of operations during the Persian Gulf War, the Board has recharacterized the issue to include consideration of entitlement to service connection to include as due to undiagnosed illness. See 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012); 38 C.F.R. § 3.317 (2012). The Board has reviewed the Veteran's Virtual VA file and finds that it does not include any additional relevant documents. 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 As stated in the introduction, the Veteran has served in the Army National Guard; however, there has been no verification of periods of active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA). This is particularly significant in light of the fact that, during VA treatment for left ankle pain in June 2010, the Veteran reported that he did routine exercises in the National Guard. He indicated during an August 2010 VA examination that he was currently serving in the National Guard. Verification of all periods of ACDUTRA and/or INACDUTRA should be accomplished on remand. Service treatment records from the Veteran's first period of active duty service were provided to the RO in February 2010. Additional records provided in February 2010 include a February 2010 print-out of various dates of treatment at a Department of Defense (DOD) military treatment facility, from April 2001 to May 2009, including an August 2008 pre-deployment examination. A medication list included in these records documents that the Veteran received medication from the Darnall Army Community Hospital (ACH) pharmacy two days after this pre-deployment examination. Service treatment records dated after November 2004 are not presently available for the Board's review. A request for additional service treatment records, to include directly from Darnall ACH, should be made on remand. The Veteran was afforded a VA examination to evaluate his claimed left ankle condition in August 2010. The examiner opined that the current left ankle strain is not related to an in-service basketball injury. The examiner, however, failed to address whether the Veteran's left ankle condition is otherwise related to service. Accordingly, remand is required to obtain a supplemental medical opinion to adequately address the claim on appeal. In light of his service in the Southwest Asia theater of operations during the Persian Gulf War and his complaints of joint pain in the ankle, the examiner should also address whether the Veteran has symptoms of joint pain in regard to the left ankle which may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness related to the Veteran's Persian Gulf War service. In light of the characterization of the claim, the Veteran should be provided additional notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) regarding the Persian Gulf War aspect of his claim. The RO/AMC should also obtain any more recent VA treatment records from the Oklahoma City VA Medical Center (VAMC). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate action to attempt to verify all of the Veteran's periods of ACDUTRA and INACDUTRA with the Army National Guard. 2. Request from the National Personnel Records Center (NPRC), the Veteran's National Guard Unit, Darnall ACH, or any other appropriate entity, any additional service treatment records, to particularly include records from the Veteran's second period of active duty, including an August 2008 pre-deployment examination. 3. Provide the Veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises him of the information and evidence necessary to substantiate his claim for service connection for a left ankle condition, to include as due to undiagnosed illness pursuant to 38 U.S.C.A. § 1117. 4. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his claimed left ankle condition. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for VA treatment records from the Oklahoma City VAMC, dated since January 2011. The AMC/RO should also request any reports of X-rays of the left ankle dated between June and October 2010. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 5. After all available records have been associated with the claims file or Virtual VA e-folder, forward the claims file to the examiner that conducted the August 2010 VA examination, if available, for a supplemental medical opinion. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left ankle disorder present since April 2010, to include chronic left ankle strain as diagnosed in August 2010, had its clinical onset during active service or is related to any in-service disease, event, or injury during active service (to include a period of ACDUTRA), or is related to an injury incurred during a period of INACDUTRA. If there are symptoms related to the Veteran's claimed left ankle disorder, including joint pain, that cannot be attributed to a known diagnostic entity, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. As indicated above, the examiner should review the record in conjunction with rendering the requested opinion; however, his attention is drawn to the following: * A January 2003 service treatment record documents that the Veteran complained of left foot pain since he landed on the left side of his foot while playing basketball earlier that day. X-ray was negative for fracture. The assessment was anterior talofibular ligament (ATFL) strain. * In an August 2003 Post-Deployment Health Assessment, the Veteran denied swollen, stiff, or painful joints. * In a November 2004 Report of Medical History at separation, the Veteran reported foot trouble, however the examiner commented that this referred to a history of Achilles tendonitis, which was resolved. [Service connection has been granted for right Achilles tendonitis.] On separation examination, clinical evaluation of the lower extremities and feet was normal. * The Veteran was afforded a VA examination in March 2010 to evaluate a right Achilles tendon condition, a bilateral knee condition, and a lower back condition. Except for these conditions, the Veteran did not report any other symptoms or conditions pertaining to the musculoskeletal system. Examination of the left ankle revealed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding of movement. There was no deformity and range of motion was within normal limits. * During VA treatment in June 2010, the Veteran complained of progressive left ankle pain with ambulation. He denied direct trauma. On examination there was no swelling, erythema, or tenderness of the left ankle. The assessment was degenerative joint disease (DJD). The physician commented that X-rays showed mild arthritic changes of the knees and right ankle. X-ray of the left ankle was ordered. * In July 2010, the Veteran was issued bilateral medial/lateral ankle supports by the Oklahoma City VAMC for osteoarthritis. * On VA examination in August 2010, the Veteran reported a left ankle condition for one year, stating that it occurred gradually over time. He described symptoms including pain. Examination of the left ankle revealed guarding of movement and decreased dorsiflexion with painful motion. Left ankle X-ray was within normal limits. The diagnosis was chronic left ankle strain. The examiner opined that the Veteran's left ankle injury was not related to an in-service basketball injury, as it occurred over time. * The Veteran was seen in the Oklahoma City VAMC in October 2010 for follow-up of his left ankle pain. The physician commented that X-ray was consistent with mild degenerative changes. The assessment was DJD and the Veteran was to continue nonsteroidal anti-inflammatory drugs (NSAIDs) and his ankle brace. In rendering his opinion, the examiner should consider and address the October 2010 VA treatment record indicating that left ankle X-ray was consistent with mild degenerative changes. This should be reconciled with the August 2010 negative left ankle X-ray. The examiner should also consider and address the Veteran's report of reinjuring his left ankle while deployed to Iraq, as made in an August 2011 statement. The examiner must also consider and address the Veteran's August 2010 report that his left ankle condition had existed for one year, so, dating back to his second period of active duty service. The examiner is advised that the Veteran is competent to report injuring his left ankle and is competent to describe left ankle pain. The complete rationale for ALL opinions expressed, should be set forth in the examination report. If further examination of the Veteran is deemed necessary, arrange for the Veteran to undergo VA examination to obtain the above-noted opinions. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 6. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 7. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter that 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). _________________________________________________ P. M. DILORENZO 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).