Citation Nr: 1332315 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 13-00 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of a left ankle and leg injury. 2. Entitlement to an effective date earlier than February 17, 2011, for the grant of service connection for anxiety disorder. 3. Entitlement to an initial disability rating in excess of 30 percent for anxiety disorder. 4. Entitlement to an increased rating for right patella femoral syndrome, currently rated at 10 percent. 5. Entitlement to service connection for degenerative joint disease of the cervical spine. 6. Entitlement to service connection for peroneal palsy of the left leg. 7. Entitlement to service connection for peroneal palsy of the right leg. 8. Entitlement to service connection for a back condition. ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1971 to March 1973 and June 1973 to November 1980, with additional unverified service in the reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Since the July 2010 rating decision, the Veteran has relocated and the St. Petersburg, Florida RO has jurisdiction over this matter. 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 With regard to the Veteran's left ankle and leg condition, the Veteran contends that the condition is related to a May 1982 injury that occurred while he served on active duty training in the Alabama National Guard. The Veteran has an unverified period of service with the reserves. On remand, the RO/AMC should make efforts to verify the dates and types of the Veteran's service after 1980. This is especially important given the fact that the Veteran submitted a May 1982 letter that indicates that the Veteran was placed on restricted duty for two weeks because of a left ankle and foot injury. The May 1982 letter also indicates that the Veteran was treated at the Headquarters Martin Army Community Hospital at Fort Benning, Georgia and was to receive follow-up treatment at Fox Army Hospital at Redstone Arsenal, Alabama. Given this information, the RO/AMC should attempt to obtain treatment records from these two facilities. The RO/AMC should also obtain all treatment records, as well as any available VA treatment records for any dates of service verified after 1980. Although the Veteran was afforded a VA examination in August 2012, the examiner stated that he was unable to determine whether the Veteran's current left ankle and leg condition was related to the Veteran's service because there was no documentation or treatment record of the 1982 injury, aside from the May 1982 letter indicating that the Veteran was placed on restricted duty for two weeks because of a left ankle and foot injury. The letter is an indication that the Veteran suffered some injury in 1982. What his duty status was at that time is still to be determined. Nevertheless, the examiner did not address the Veteran's contention that he has suffered from left ankle pain off and on since his 1982 accident or a May 2010 letter from Dr. S. P. that indicated that Dr. S.P. has treated the Veteran for problems with both legs and ankles for years, and opined that the Veteran's injuries are more likely than not related to the Veteran's in-service injuries. Since the examiner did not address the Veteran's lay statements or the private medical opinion, a new VA examination and opinion are necessary in order to accurately decide this claim. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). In a January 2013 rating decision, the RO granted service connection and assigned an initial 30 percent rating for anxiety disorder, effective from February 17, 2011, and denied the remaining claims of service connection. The Veteran's then-representative submitted a notice of disagreement in January 2013. To date, a statement of the case has not yet been provided to the Veteran as to the issues of an earlier effective date for the grant of service connection for anxiety disorder; increased initial rating for anxiety disorder; increased rating for right patella femoral syndrome; and service connection for degenerative joint disease of the cervical spine, peroneal palsy of the right and left legs; and a back condition. On remand, the AMC/RO must issue a statement of the case regarding these issues. Accordingly, the case is REMANDED for the following action: 1. Specifically identify and verify all of the Veteran's periods of active service, reserve service, ACDUTRA, and INACDUTRA. Attempt to obtain service treatment records associated with any such periods of service. In addition, attempt to obtain any treatment records from Headquarters Martin Army Community Hospital at Fort Benning, Georgia and Fox Army Hospital in Redstone Arsenal, Alabama related to the Veteran's 1982 ankle injury. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of any current left ankle and/or leg condition. The claims file and all pertinent records must be made available to the examiner for review. The examiner should obtain from the Veteran a detailed history of in-service and post-service left ankle and/or leg injuries and post-service history of left ankle and/or leg conditions. The examiner should identify all current left ankle and/or leg conditions and provide an opinion indicating whether it is at least as likely as not (a 50 percent probability or greater) that any current left ankle and/or leg condition is related to the Veteran's active military service. The examiner should specifically consider that the Veteran sustained an injury in 1982 and address his statements that he has suffered from left ankle pain off and on since the accident and that it has gotten worse recently. The examiner should also reconcile the examiner's opinion with Dr. S. P.'s May 2010 opinion the Veteran's injuries are more likely than not related to the Veteran's in-service injuries. The medical basis for all conclusions reached should be provided. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Thereafter, issue the Veteran an SOC with respect to his claims of entitlement to an earlier effective date for the grant of service connection for anxiety disorder; an initial rating in excess of 30 percent for anxiety disorder; increased rating for right patella femoral syndrome; and service connection for degenerative joint disease of the cervical spine, peroneal palsy of the left leg, peroneal palsy of the right leg, and back condition. 4. Then, readjudicate the claim on appeal. If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case before returning to the Board, if otherwise in order. 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. 2013). _________________________________________________ M. E. LARKIN 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).