Citation Nr: 1331001 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-27 362A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for a bilateral ankle disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran had active service from July 1972 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in in Sioux Falls, South Dakota. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2013). The Veteran contends that his bilateral ankle disability is related to the injuries he suffered in service as a football player for the Air Force football team. He has requested a VA examination to establish the etiology of his contended bilateral ankle disability. The Board notes that the Veteran was denied service connection by the Regional Office (RO) due to the lack of any objective evidence of an ankle injury in service. However, the Board refers to both the March 1974 physical profile report which documents a Hematoma to of the right foot and the January 2010 VA treatment note which states "[the Veteran] has bilateral ankle joint arthritis secondary to old sports injuries he incurred when he was in the service." Thus, the Board must determine whether this evidence trigger VA's duty to assist the Veteran by providing a medical examination. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to render a decision on the claim, as defined by law. In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The four elements discussed in the above test prescribed by the Court have been met in the present case: (1) the Veteran has been presently diagnosed with bilateral ankle joint arthritis as shown in a December 2009 VA treatment note, (2) there is an indication that in service the Veteran may injured his ankles playing sports as noted in the January 2010 VA treatment note (quoted below) and a March 1974 physical profile report which documents a Hematoma to of the right foot. Additionally, (3) a VA examiner noted in the Veteran's January 2010 VA treatment note that "[the Veteran] has bilateral ankle joint arthritis secondary to old sports injuries he incurred when he was in the service." (4) The lack of any rational accompanying the January 2010 VA treatment note makes this statement insufficient to decide the case, but raises a reasonably possibility that the Veteran's claim may be substantiated. Therefore, in view of the foregoing discussion, the Board finds it appropriate to remand the current appeal for such an examination. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of any outstanding VA and private medical records relevant to the Veteran's claim following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. If attempts to obtain any additionally identified records are unsuccessful, and it is determined that further attempts to obtain them would be futile, then make an express declaration to this effect and notify the Veteran of this in accordance with 38 C.F.R. § 3.159(c) and (e). 2. Following the conclusion of the above development, the Veteran shall be afforded an opportunity to attend an appropriate VA examination to evaluate the nature and etiology of any current bilateral ankle disability. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that the claims file and any electronic records have been reviewed. Based on the clinical examination, a review of the evidence of record including the March 1974 right foot Hematoma, and with consideration of the Veteran's statements concerning in-service injuries to the feet and ankles in service, the examiner shall identify a diagnosis of all bilateral ankle disabilities and render an opinion as to the following: Whether it is at least as likely as not (at least a 50 percent probability) that any currently diagnosed disability of either ankle was incurred in, as a result of, or otherwise etiologically related to Veteran's active duty service. A complete rational for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide their reasons why an opinion would require speculation. The examiner must indicate whether there is any further need for information or testing necessary to make a determination. 3. After the development requested, including the VA examination, has been completed, the AOJ must review the examination reports to ensure that they are in complete compliance with the directives of this Remand. If a report is deficient in any manner, the AOJ must implement correct procedures at once. 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO must consider all the additional evidence, and the issue of entitlement to service connection for a bilateral knee disability should be readjudicated. If the benefit sought on appeal remain denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond. The record should then 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). _________________________________________________ JONATHAN B. KRAMER 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) (2013).