Citation Nr: 1331693 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 10-23 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The appellant had active service from May 12, 1969 to June 4, 1969. 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 Muskogee, Oklahoma. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND The appellant claims that his pre-existing clubfoot, which was surgically corrected prior to service, was aggravated by an ankle sprain during service, resulting in a right ankle disability. He acknowledges sustaining two post-service right ankle injuries but claims that the in-service sprain aggravated his condition. During a February 1969 enlistment examination, the appellant reported a history of foot trouble, which the examiner noted as surgery for clubfeet with good results. Examination showed good function of the feet. On May 16, 1969, four days after entering service, the appellant complained of constant bilateral ankle pain especially when marching or doing facing movements. He reported a pre-service history of ankle surgery in December 1967 and January 1968 with one additional surgery on both ankles. He was diagnosed with unstable painful arthrodesis and degenerative arthritis of both ankles, and referred for further evaluation of the right ankle. A May 20, 1969 Medical Board Report shows that the appellant's bilateral ankle condition was not incurred in line of duty, existed prior to service, and was not aggravated by service beyond the normal progression of the disease. The appellant was discharged on June 4, 1969. After service, August 2008 VA x-rays of the right ankle show surgical fusion of the ankle joint with at least two orthopedic screws, cortical thickening of the distal tibia and fibula, and arthritis of the intertarsal joints in the proximal foot. In a July 2009 letter, a private podiatrist noted that the appellant had a complicated history of injury including a congenital clubfoot deformity of both feet that was operated on in the early teens and corrected with surgical hardware. The podiatrist observed that the appellant was inappropriately inducted into the service in May 1969 where he sustained a right ankle sprain and, when his congenital disability and post-operative condition was discovered by his superiors, was discharged. The podiatrist noted that, subsequent to the sprain in question, the appellant injured the right ankle twice, in 1975 when a stack of hay rolled over the ankle and in 1979 when he was electrocuted with high power lines. The podiatrist noted that, after the last injury, the appellant's ankle hurt all the time and required more surgeries, including a fusion which resolved most of the pain. Because there was so much injury to the ankle, the podiatrist was unable to state definitely how much of the damage was caused or exacerbated by the sprain in service. The podiatrist opined that it was likely that any contribution from the service sprain was minimal due to the serious nature of later injuries and the immediate problems subsequent to those injuries. The podiatrist concluded that it was likely that the sprain contributed no more than 10 percent to any condition or disability the had currently. Initially, the Board observes that the service medical records do not show that the appellant sprained his right ankle. However, they do show complaints of bilateral ankle pain, right greater than left, as indicated by a referral for further evaluation of the right ankle. Thus, the record shows that the appellant had some sort of complaint involving the right ankle during service. Although the podiatrist was unable to state definitely how much of the damage was caused or exacerbated by the in-service injury, that podiatrist still opined that it was likely that the injury contributed to approximately 10 percent to the appellant's current condition. The opinion, as phrased, is too speculative to warrant a grant of service connection in this case. However, the opinion indicates that the appellant's pre-existing clubfoot may have been aggravated by an ankle injury during service. Thus, the appellant should be afforded a VA examination to obtain an opinion on the matter. Prior to the examination, any outstanding VA medical records should be obtained. The appellant receives treatment from the Muskogee VA Medical Center (VAMC), and the record contains treatment notes through September 2010. Thus, any outstanding treatment notes since that time should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding records of treatment from the Muskogee VAMC since September 2010. 2. Then, schedule the appellant for a VA examination to determine whether there is any relationship between the appellant's right ankle disability and his period of active service from May 12, 1969, to June 4, 1969. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the appellant's pre-existing clubfoot underwent a permanent increase in severity during service. If so, the examiner should state whether any increase in severity was more likely (greater than 50 percent probability) the result of the natural progress of the disorder. If a permanent increase in severity was shown during service, the examiner should state whether or not clear and unmistakable evidence shows that the right ankle disability was not aggravated (permanently increased in severity beyond the natural progress of the disorder) during service. The examiner should consider the appellant's lay statements regarding in-service injury and symptoms since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner should also consider the July 2009 letter from a private podiatrist indicating that the pre-existing clubfoot disorder may have been aggravated by an in-service ankle injury. The examiner should provide a rationale for all opinions expressed. The examiner should review the claims folder and the examination report should note that review. 3. Then, readjudicate the claim. If any decision remains adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. Thereafter, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).