Citation Nr: 1332980 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 12-14 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from March 1970 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In deciding this appeal, the Board has reviewed the Veteran's electronic ("Virtual VA") file, in addition to his physical claims file. Virtual VA is a highly secured electronic repository used to store and review every document involved in the claims process. VA also is in the process of transitioning to an even newer electronic medium, the Veterans Benefits Management System (VBMS). In this case, there are no additional treatment records among the Veteran's paperless records in either the Virtual VA system or VBMS. In May 2012, the Veteran submitted a lay additional statement in support of his claim with his substantive appeal. The RO received this statement, following their issuance of a May 2012 statement of the case, but did not review this new evidence in a subsequent supplemental statement of the case prior to certification of the appeal to the Board in July 2012. To the extent that this new evidence is relevant to the claim on appeal, this decision remands the claim for further development, and the RO/AMC will have the opportunity to consider the evidence submitted since the May 2012 supplemental statement of the case. See 38 C.F.R. § 20.1304. 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 Here, the Veteran's January 1970 preinduction report of medical examination does not reflect any pre-service right ankle fracture. Therefore, the right ankle fracture was not "noted" upon examination and acceptance into service. Rebutting the presumption of soundness requires a higher evidentiary standard than a preponderance of the evidence, and the evidence of record fails to address that standard. Therefore, the Board will remand the case for a medical opinion addressing the correct legal standard. Once the presumption of soundness has attached, to rebut this presumption the VA, and not the Veteran, must show by clear and unmistakable evidence that the injury both pre-existed his service and was not aggravated during or by his service beyond its natural progression. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In this case, the service treatment records include an April 1970 X ray showing old nonunion fracture of the right medial malleolus, and an April 1970 medical evaluation board (MEB) report finding that the Veteran's right ankle fracture existed prior to service and was not aggravated by his service. The MEB's findings include a summary, showing moderate tenderness and minimal swelling in service as well as intermittent pain and swelling since the August 1968 fracture. Adjudicators cannot rely on a MEB's findings without a supporting analysis to deny the presumption of soundness. Horn v. Shinseki, 25 Vet. App. 231, 242 (2012). In order to rebut the presumption of soundness under Wagner, the evidence must rise to the higher standard of clear and unmistakable as to the lack of in-service aggravation. The September 2010 VA examination also should have discussed the natural progression of the disability. Therefore this examination is inadequate. Finally, the record clearly reflects that the Veteran receives private healthcare. The most recent private treatment records in the claims file are from February 2008. The Veteran should again have the opportunity to authorize the release of any additional private treatment records. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and ask him to authorize the release of any private treatment records. The RO/AMC should then obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. After any outstanding private treatment records have been obtained, schedule the Veteran for a VA orthopedic examination. The claims file, including this remand, must be made available to the examiner for review. All appropriate tests and studies are to be conducted, and any consultations deemed necessary are to be accomplished. After reviewing the record and examining the Veteran, the examiner should address the following: a. Does the evidence clearly and unmistakably demonstrate that the Veteran sustained a pre-service right ankle fracture? b. If the evidence clearly and unmistakably demonstrates a pre-service right ankle fracture, did the residual disability from that right ankle fracture increase in severity during his service from March 1970 to April 1970? If so, was that increase in severity clearly and unmistakably due to the natural progression of the disease? The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must 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. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim on appeal. If the benefits sought on appeal are not granted in full, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). _________________________________________________ CHERYL L. MASON 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).