Citation Nr: 1333398 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 08-22 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of a left ankle fracture, including tarsal tunnel syndrome. 2. Entitlement to service connection for degenerative joint disease (arthritis) of the right foot. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from August 1980 to November 1985. He appealed to the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The RO in Waco, Texas, however, certified his appeal to the Board. In support of his claims, he testified at a videoconference hearing in April 2009 before the undersigned Veterans Law Judge (VLJ) of the Board. In March 2010 and again in June 2013, the Board remanded the claims to the RO via the Appeals Management Center (AMC) for further development and consideration. Unfortunately, because the instructions in the Board's most recent remand were not sufficiently followed, yet another remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand orders, and the Board itself commits error as a matter of law in failing to ensure compliance.) Claims of entitlement to service connection for knee disorders were denied in September 2010. The Board has since, in September 2013, received completed authorization and consent forms allowing VA to obtain the confidential records of two private physicians that have treated the Veteran for these knee disorders. The Board construes these forms as petitions to reopen these previously considered and denied claims. But the RO has not had opportunity to initially consider these petitions to reopen these claims as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these additional claims, so is referring them to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over a claim not yet adjudicated by the RO in the first instance). REMAND As concerning these two claims that are currently before the Board on appeal, in June 2013 the Board remanded these claims for addendum opinions by the previous examiner who had performed the January 2012 VA examination. The nurse practitioner was to provide supplements to her prior opinions and comment and consider specific records and evidence the Board identified. Even her addendum opinion is found inadequate, however, because she continued to deny the existence of evidence in the Veteran's service treatment records (STRs) of any right foot problems, although the Board identified a seemingly pertinent 1983 record. With regards to the left ankle, her response to the Board's directive was inadequate because she did not specifically address the January 2007 letter from a private physician who indicated the Veteran reported sustaining a left ankle injury and consequently having weakness in this ankle before a September 2006 work-related injury as a civilian. She also made reference to a 2009 record in which a physician noted degenerative arthritis but could not offer a definitive opinion regarding its etiology. The Board sees that a preceding February 2007 CT scan also found indications of osteoarthritis. Given this evidence of left ankle arthritis, the nurse practitioner should also offer an opinion about its etiology. Because the addendum opinions failed to adequately respond to the Board's remand directives, even in a substantial sense, another remand of the claims is required. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, these claims are yet again REMANDED for the following additional development and consideration: 1. Forward the Veteran's claims file and a copy of this remand to a qualified VA compensation examiner for review and supplemental medical opinions regarding these claimed left ankle and right foot disorders. If this new reviewer determines that an additional examination is needed to generate the requested opinions, then one should be scheduled. The reviewer should provide a medical opinion as to the likelihood (very likely, as likely as not, or unlikely) that the Veteran's current left ankle condition, including the arthritis, (1) incepted or originated during his service from August 1980 to November 1985, or (2) since involving arthritis, initially manifested to the required minimum compensable degree of at least 10-percent disabling within the first year following the conclusion of his service - so by November 1986, or (3) is otherwise related or attributable to his service, including especially to the 1983 left ankle fracture noted in service and the finding of mild laxity of the lateral ligaments of this ankle subsequently noted during his military separation examination. In providing this supplemental opinion, the reviewer must specifically address the January 2007 private physician's letter referencing the Veteran's report of left ankle injury in service and consequent weakness even prior to an additional, work-related injury he sustained as a civilian in September 2006. The reviewer is advised the Veteran is competent, even as a layman, to report any injury he sustained or symptoms he experienced while in service and during the many years since, even preceding that additional (intercurrent) injury. So his statements concerning this also must be considered in light of the medical and other evidence of record to determine whether his lay testimony, even if competent, is also credible (a factual determination the Board eventually has to make) to consequently ultimately have probative value. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence such as actual treatment records). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record"). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (The Board may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.). The examiner must also provide a medical opinion as to the likelihood (very likely, as likely as not, or unlikely) that the Veteran's right foot arthritis diagnosed in 2007 (1) incepted during his service from August 1980 to November 1985, or (2) within one year of his discharge, so meaning by November 1986, or (3) is otherwise related or attributable to his service, including especially to his 1983 report of right foot and ankle pain in service. The record in question is a September 1983 podiatry radiology request indicating the Veteran had foot injury and contains a provisional diagnosis involving the right and left foot and ankle. X-rays were taken of both feet and ankles with a finding of talonavicular fusion in the right foot. In formulating this opinion, the examiner must specifically address the February and September 2007 treatment records noting arthritis in the right foot secondary to trauma, so post-traumatic. If these requested opinions cannot be provided without resorting to mere speculation, discuss why this is the case, such as by indicating whether more information is needed or because the limits of medical knowledge have been exhausted regarding the disabilities at issue or for whatever other reason. In other words, the examiner merely saying she cannot comment will not suffice. 2. Ensure this additional report contains responses to the questions posed above. If not, take corrective action to avoid yet another remand. 38 C.F.R. § 4.2 (2013). 3. Then readjudicate these claims in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ KEITH W. ALLEN 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).