Citation Nr: 1332081 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 10-09 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a left ankle disability, including as secondary to service-connected chronic right ankle sprain. 2. Entitlement to an increased evaluation for chronic right ankle sprain, rated as 10 percent disabling prior to October 12, 2009 and 20 percent disabling from that date. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from March 1986 to November 1993, to include service in the Southwest Asia theater of operations from September 30, 1990, to March 18, 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2010, the RO received a VA Form 9, Substantive Appeal, from the Veteran wherein he indicated that he was only appealing the left ankle issue. He checked box 9.B., which is completed when a claimant wishes to limit his appeal, and indicated that he was appealing the left ankle issue only. In box 10, the Veteran wrote "Please See Attached," and attached a letter which pertained only to the left and right ankles. The Board's examination of the Veteran's March 2010 submission reveals what is, at best, an ambiguous communication with regard to the right ankle issue and, absent further clarification, was insufficient to deprive the Board of jurisdiction over the claim of entitlement to a higher evaluation for a chronic right ankle sprain. See Evans v. Shinseki, 25 Vet. App. 7 (2011) (VA must seek clarification when a submission is ambiguous as to the appellant's intent). As to his claims of service connection for left hip, left knee and right knee disability, although the issues were included in the March 2011 VA Form 8, "Certification of appeal," the Board finds his intent not to perfect an appeal as to those issues is clear and thus they are not before the Board. See 38 C.F.R. § 19.35 (2013); cf. Percy v. Shinseki, 23 Vet. App. 32 (2009); see also Gonzalez-Morales v. Principi, 16 Vet. App. 556 (2003). As such, the issues on appeal are as stated on the title page. 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 to his left ankle claim, the service treatment records show that the Veteran was seen on numerous occasions for complaint and treatment of left ankle problems. In support of this claim, the Veteran maintains that he has recurrent left ankle problems since service. In addition, VA outpatient treatment records show that he has been diagnosed as having chronic "ankle" pain; service connection is in effect for the right ankle only. In light of the medical evidence of record and the Veteran's competent and credible report of left ankle problems since service, the Board finds that a remand is necessary to afford the Veteran a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, the Veteran had a period of service in Southwest Asia theater of operations during the Persian Gulf War. Courts have held that proceedings before VA are nonadversarial and VA's obligation to analyze claims goes beyond the arguments explicitly made. See Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000) (Upon the filing of a claim for benefits, VA generally must investigate the reasonably apparent and potential causes of the Veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing.). In this regard, the Board notes that under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran for a qualifying chronic disability. Pursuant to the regulation, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2016. See 38 C.F.R. § 3.317(a)(1) (2013). To date, the Veteran's left ankle claim has not been considered under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. In light of the foregoing, the Board finds that the RO must provide the Veteran with appropriate notice of the evidence needed to establish service connection under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. In addition, the Veteran stated in March 2010 that he has continuously complained of a left ankle problem through the East Point VA Medical Center. As such, the recent VA treatment records dated since October 2009 should be obtained. See 38 C.F.R. § 3.159(c)(2) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran's most recent VA right ankle examination was in October 2009. In March 2010, the Veteran stated that his right ankle disability has worsened over time. Where the Veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the state of the condition, VA must provide a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Therefore, a new examination is necessary to assess the current severity of the Veteran's right ankle condition. Accordingly, the case is REMANDED for the following actions: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service left ankle problems, and the nature, extent and severity of any right ankle symptoms, to include the impact of his right ankle disability on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Provide the Veteran appropriate notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes the criteria required for a claim asserted based on Persian Gulf War service under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, with regard to the left ankle claim. The Veteran should be provided an appropriate amount of time to respond to this notification. This notification should be associated with the claims folder. 3. Obtain, physically or electronically, the East Point VA Medical Center records dated from October 2009 to the present. Such records must either be printed and associated with the Veteran's paper claims folder, or uploaded into the Veteran's electronic file contained in the Virtual VA system. 4. After associating with the claims folder any pertinent outstanding records, the RO should arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any left ankle disability found to be present and the extent and severity of his right ankle disability. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must also review all records in Virtual VA, and specifically state the date of the last record reviewed in Virtual VA. All indicated studies should be performed and all findings should be reported in detail. The examiner state whether the Veteran's left ankle symptoms are attributable to a known clinical diagnosis. If the examiner diagnoses the Veteran as having a left ankle disability, the examiner must state whether the Veteran's left ankle disability is related to or had its onset in service, to specifically include the competent and credible lay and medical evidence showing left ankle problems during and since service. The examiner is also requested to offer an opinion as to whether it is at least as likely as not that the Veteran's left ankle disability was caused or aggravated by the Veteran's right ankle disability. As to the Veteran's right ankle disability, the examiner must perform an appropriate range of motion examination, expressing all findings in degrees and noting the degree where painful motion, if any, is present, on both flexion and extension. Further, the examiner should indicate whether the limited motion of the ankle, if any, is best characterized as marked or moderate. Further, the examiner should note the presence, or absence, of (i) ankylosis of the subastragalar or tarsal joint, noting poor or good weight-bearing position; (ii) malunion of the os calcis or astragalus, noting marked or moderated deformity; and (iii) astragalectomy. All provided opinions should be supported by a rationale and all findings and conclusions should be set forth in a legible report. 5. Then readjudicate the appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ STEVEN D. REISS 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).