Citation Nr: 1332963 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-29 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a right ankle disorder, to include as secondary to service-connected left ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from December 1986 to February 1987 and again from March 1992 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the St. Paul, Minnesota, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a right ankle disorder. Jurisdiction now lies with the Philadelphia, Pennsylvania RO. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in January 2013. A transcript of that hearing is associated with Virtual VA. 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 The Veteran assets that he warrants service connection for a right ankle disorder based upon service incurrence. He maintains that he injured his right ankle during a morning run in February 1987. He also alleges in the alternative, that his right ankle has been aggravated as a result of his service-connected left ankle. He states that he has placed more stress on his right ankle because of the way he must walk because of his left ankle disability. The Veteran stated during his January 2013 videoconference hearing that he was seen shortly after service at a private facility for his right ankle complaints. He indicated that he attempted to obtain those records from the Pottsville Hospital, to no avail. He stated that the records of his treatment in 1987 were no longer available. However, he stated that his mother was aware of his injury and his treatment for that right ankle injury. The Veteran should attempt to obtain a statement from his mother related to her knowledge of his ankle injury and treatment. Additionally, he states that he has received treatment from VA since 2010 for his right ankle injury. Those records are not associated with the claims folder. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Those treatment records should be obtained and associated with the claims folder. Further, the Veteran submitted a copy of June 2013 MRI findings of the right ankle which indicates, in pertinent part, evidence of a questionable tear involving the peritoneal tendon of the right ankle. This MRI was compared with a February 2013 x-ray report of the right ankle. The February 2013 x-ray report is not associated with the claims folder. Additionally, the Veteran has not been examined in connection with this claim. As such, he should be provided an examination to determine whether his right ankle disorder is related to service, or in the alternative, secondary to his service-connected left ankle disability. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain all VA outpatient treatment records from 2010 to the present, specifically a February 2013 x-ray report of the right ankle, and associate those records with the claims folder. 2. The Veteran should be given an opportunity to obtain a written statement from his mother regarding his injury of his left ankle in service and his subsequent treatment at Pottsville Hospital in February 1987. If that statement is obtained, it should be associated with the claims folder. 3. Thereafter, the Veteran should be afforded a VA orthopedic examination to determine the nature and etiology of his claimed right ankle disorder. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case, A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should provide an opinion indicating whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's right ankle disorder is the result of an inservice event. Alternatively, the examiner should also provide an opinion indicating whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected left ankle disability caused or aggravated his claimed right ankle disorder. If it is determined that his right ankle disorder is not caused by the aforementioned service-connected left ankle disability, but that aggravation beyond the natural progression of the right ankle disorder exists based on his service-connected left ankle disability, the examiner should be asked to identify the baseline level of severity of the symptoms prior to aggravation and the current level of severity of symptoms due to service-connected aggravation. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ F. JUDGE FLOWERS 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).