Citation Nr: 1328327 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 12-18 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Antoinette Chance, Associate Counsel INTRODUCTION The Veteran served in the United States Army from May 1979 to March 1987, followed by membership in National Guard service and Army Reserve service until September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the St. Louis, Missouri, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for a left ankle disability. The Board notes that in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper files or are irrelevant to the issue on appeal. 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 law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Such assistance includes assisting the Veteran in procuring service treatment records and other relevant treatment records, and providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In the instant case, the Veteran contends that he sustained an injury to his left ankle during his period of active service. He specifically alleges that the denial of service connection in the October 2010 rating decision was erroneous in that it was premised upon the mistaken belief that a May 1979 in-service examination was a separation examination when in fact it was a delayed entry examination, and that his left ankle injury did not occur until after such examination was conducted. The Veteran further alleges that he was never afforded a service separation examination. Finally, private medical records dated in March 2010 indicate a current left ankle diagnosis and the Veteran's reported history that he hyper-extended his ankle in service 30 years prior. Service Treatment Records In efforts to assist in substantiating the claim, VA sought to obtain the Veteran's service treatment records (STR's), personnel records, and relevant private treatment records. In January 2010, in response to a request from the RO for the Veteran's service treatment records, the National Personnel Records Center in St. Louis, Missouri (NPRC), notified VA that, "there are no STRs at code 13 for this person." In April 2010 the Veteran's personnel records, including a May 1979 entrance examination report, were obtained and associated with the file. In June 2010, in response to a request from the RO for the Veteran's service treatment records from the Records Management Center (RMC), VA was informed no records existed at the RMC for the Veteran. Finally, in July 2010, the Veteran's private treatment records were obtained and associated with the claims file. In cases where the Veteran's service treatment records (or other pertinent records, for that matter) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). VA also must provide an explanation to the appellant regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court also has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). A Formal Finding of the Unavailability of Service Records was issued in June 2010. This memorandum discussed the various attempts made to retrieve the Veteran's outstanding service treatment records. VA informed the Veteran in a letter in July 2010 that the attempts to obtain his service treatment records were unsuccessful and asked him to furnish copies of his service treatment records or any relevant documents he may have in his possession and listed alternate documents that the Veteran could use as a substitution for service records. It does not appear that the Veteran provided the additional evidence requested or any documents, records or information in support of his claim. Given that the Veteran had Army Reserve and National Guard service following his period of active duty service, and in light of the fact that VA has a heightened duty to assist the Veteran in instances where records once in the government's control are lost or destroyed, the Board finds that an additional requests should be made to the National Guard Service, the Office of the Adjutant General, and the Veteran's Army Reserve unit, in an attempt to verify any periods of active duty or active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA) and to obtain any pertinent service treatment records relating to the Veteran's alleged in-service ankle injury. Indeed, such requests should be made for the Veteran's outpatient records and his company morning reports. The RO is reminded that, in requesting records from Federal facilities, efforts to assist should continue until either the records are obtained, or sufficient evidence indicating that the records sought do not exist, or that further efforts to obtain those records would be futile, is received. See 38 C.F.R. § 3.159(c)(2). If the Veteran's periods of additional active duty or any ACDUTRA are unverifiable, that fact should be documented, in writing, in the record. VA examination VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the instant case, the Veteran has not been afforded a VA examination to determine whether his current ankle disability is related to his military service. The record does not contain any competent and credible evidence that is inconsistent with the Veteran's contention that he injured himself during service. Therefore, VA has no basis to challenge the credibility of the Veteran's allegation. Again, in light of the fact that VA has a heightened duty to assist the Veteran in this circumstance, the Board finds that a VA examination and medical opinion addressing the specific etiology of the Veteran's current disability is necessary to help substantiate the claim. Therefore, such examination is warranted in this instance. McLendon, Ibid. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to verify his specific Army Reserve unit. 2. AFTER COMPLETION OF THE ABOVE, contact the Veteran's Army Reserve unit, the National Guard Service, and the Office of the Adjutant General to verify all periods of ACDUTRA and INACDUTRA and to request all service treatment/medical records in their possession for the Veteran. Associate all obtained records with the claims file. If such records are unavailable or do not exist, such must be certified in writing. The procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities must be adhered to. All efforts must be documented in the record, and must include specific requests to search and/or recall any archived or otherwise stored records. 3. AFTER COMPLETION OF THE ABOVE, schedule the Veteran for a VA orthopedic examination of his left ankle to be conducted by a medical provider skilled in the diagnosis and treatment of ankle disorders. The claims folder must be reviewed in conjunction with the examination. The examiner must assume that the Veteran is credible in that he sustained an injury to his left ankle prior to his separation for his initial period of active service in 1987, absent any inconsistent documentary evidence or statements by the Veteran to the contrary. The examiner must request the Veteran to provide a complete history of the in-service injury, including all details that he believes are responsible for his current left ankle disability. Such narration should be documented in the VA examination report/medical opinion. The examiner must identify any current disability of the left ankle, and must opine as to whether any such is at least as likely as not related to (caused or aggravated by) the Veteran's military service. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. PAPPAS 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).