Citation Nr: 1331547 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 11-02 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for bilateral ankle disabilities, to include as due to residuals of cold injuries to the feet. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from February 1981 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The claim has since been transferred to the RO in Phoenix, Arizona. The Veteran and testified at a personal hearing in March 2011 before a Veterans Law Judge. A transcript of the hearing is contained in the record. The Veterans Law Judge who presided over the March 2011 hearing is no longer with the Board. The Veteran was informed of his right to request a new hearing before a current member of the Board. In July 2013, he provided a written statement that he did not wish to be scheduled for a new hearing. The issue of whether clear and unmistakable error was committed in the December 2004 rating decision with denied entitlement to service connection for residuals of a cold injury to the right foot has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 Unfortunately, a remand is required in regards to the Veteran's increased rating claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. In July 2008, the Veteran filed a claim of entitlement to service connection for bilateral ankle disabilities, and he indicated that these disabilities were secondary to his service-connected residuals of cold injuries to the feet. In September 2010 and March 2013, the Veteran was afforded VA ankle examinations. The examiners provided negative nexus opinions, finding that the Veteran's current ankle disabilities are not due to his active duty service, to include his in-service sprained ankles. The examiners, however, did not provide opinions on the Veteran's argument that his ankle disorders are a result of his service-connected residuals of cold injuries to the feet. As such, the claim must be remanded for an addendum opinion regarding secondary service connection. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that "[o]nce VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the [veteran] why one will not or cannot be provided"); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the March 2013 VA examiner, if available, for an addendum opinion. After a review of the claims file and any virtual records, the March 2013 VA examiner should identify any current bilateral ankle disabilities. Then, she should opine whether it is at least as likely as not (a 50/50 probability or greater) that any current bilateral ankle disabilities are due to or aggravated by the Veteran's service-connected residuals of cold injuries to the feet. When addressing aggravation, the use of concrete examples from the record is helpful. A complete rationale should be provided for each opinion offered. In rendering the requested opinion, the examiner must specifically acknowledge and discuss the Veteran's competent and credible lay evidence of having worsening knee problems since service discharge. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (noting that an examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). If the March 2013 VA examiner is no longer available, then a VA physician should review the claims file and provide the above requested opinion. If the examiners feel that an opinion cannot be provided without an examination of the Veteran, then he should be scheduled for an additional VA examination. 2. After completion of the above and any additional development deemed necessary, the issue on appeal must be reviewed with consideration of all applicable laws and regulations. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, 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 LANE 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).