Citation Nr: 1334676 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 99-11 704A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for chronic right ankle sprains with arthritis. 2. Entitlement to service connection for avulsion fractures of the right lateral and medial malleolus (avulsion fractures). 3. Entitlement to a rating in excess of 10 percent for pseudofolliculitis barbae, to include a compensable rating earlier than November 5, 2011. 4. Entitlement to a rating in excess of 20 percent for keloids of the chest, to include a rating in excess of 10 percent earlier than October 23, 2008. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from March 1978 to March 1982. This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The case was originally before the Board on appeal from a December 1998 rating decision of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for a right ankle disability, left ankle disability, and low back disability. In August 2003, the Veteran presented testimony at a hearing conducted by the use of video conferencing equipment at the Cleveland RO before the undersigned Veterans Law Judge (VLJ) sitting in Washington, D.C. A transcript of this hearing is associated with the Veteran's claims file. In August 2004, November 2006, and in September 2009, the aforementioned claims were remanded for further development and to satisfy notice requirements. In a decision issued in May 2011, the Board denied the Veteran's claims. He appealed the Board's decision to deny entitlement to service connection for a right ankle disability to the Court. In November 2011, the Court issued an order that vacated the May 2011 Board decision as to that matter and remanded it for readjudication consistent with the instructions outlined in a November 2011 Joint Motion for Partial Remand (Joint Motion) by the parties. The JMR directed the Board to obtain an additional medical opinion of record. In response, a fully adequate medical opinion was obtained, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. In this case, the Veteran has sought service connection for a right ankle disability. However, during the course of his appeal, the medical evidence has shown that the Veteran actually has two right ankle disabilities (right ankle sprain and avulsion fractures). As such, the Board has recharacterized the issue of entitlement to service connection for a right ankle disability into two separate issues. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Finally, as was noted above, the Veteran did not appeal the Board's May 2011 denial of service connection for a low back disability to the Court; therefore, that matter is final. 38 U.S.C.A. § 7104. In the Board's May 2012 remand, it was noted that evidence received in March 2012 included a private treatment record pertinent to the Veteran's low back, and the Board referred the issue to the Agency of Original Jurisdiction (AOJ) to clarify whether the Veteran wished to file a back claim. In June 2012, the Veteran indicated that he did wish to file a claim for service connection for his back. As such, this issue is referred to the AOJ for appropriate action. The Board also notes that the Veteran has filed several claims for a temporary 100 percent rating based on laser surgeries for his keloids. These claims were dated in August 2010, and January 2012. It is unclear whether such issues have been adjudicated and they are referred to the AOJ. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. The issues of increased ratings for keloids and pseudofolliculitis barbae are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A right ankle disability was not noted when the Veteran was examined for enlistment. 2. Clear and unmistakable evidence shows that an avulsion fracture of the right ankle disability and right ankle sprain disability preexisted his active service. 3. The preexisting avulsion fracture clearly and unmistakably did not increase in severity during the Veteran's active service. 4. The evidence of record does not clearly and unmistakably establish that the Veteran's chronic right ankle sprains were not aggravated by his military service. 5. It is at least as likely as not (50 percent or greater) that the Veteran's chronic right ankle sprains either began during or were otherwise caused by his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic right ankle sprains with arthritis have been met. 38 U.S.C.A. §§ 1101, 1111, 1113, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2013). 2. The criteria for service connection for an avulsion fracture of the right ankle have not been met. 38 U.S.C.A. §§ 1101, 1111, 1113, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In sum, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Also, although not shown during service, service connection for arthritis may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran is seeking service connection for a right ankle disability. The starting point here is whether the Veteran was presumed sound at enlistment. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. A pre-existing injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Here, in December 1977, several months before entering service, a "preliminary physical review" was completed on which the Veteran stated that his health was good and he specifically denied any foot trouble, or any deformity or loss of any extremity including the leg and foot. No additional enlistment physical appears to have been conducted prior to the Veteran's enlistment in March 1978. As such, the Veteran is presumed to have been sound at entry. To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable". Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). The second step, showing by clear and unmistakable evidence that the disease or injury was not aggravated by service, requires showing either that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. As will be discussed further, this case is complicated by the fact that the Veteran appears to have not one, but two, right ankle disorders. Specifically, he has an abnormal medial malleolus with bony overgrowth on the medial aspect of the medial malleolus and an absence of the tip of the medial malleolus, but he also has a history of recurring right ankle sprains. The JMR directed the Board to consider whether the two disorders may be different disorders with distinct medical diagnoses. Cf. Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (holding, in a different context, that disorders should be distinguished based on distinct medical diagnoses rather than common symptomatology). That is, whether the Veteran may have had a pre-existing right ankle disorder but also have incurred a separate, distinctly diagnosed right ankle disorder related to an injury or event during his active service. The Veteran was provided with a VA examination in January 2013 at which the examiner rendered the diagnoses of 1) right ankle sprain and 2) avulsion fractures of the right lateral and medial malleolus. As such, the Board accepts that the Veteran has two potential disabilities to consider for service connection under the umbrella of a "right ankle disability". Because neither condition was noted at enlistment physical, the Veteran is taken to have been in sound condition at enlistment. The issue then becomes whether the evidence of record shows that either ankle disability clearly and unmistakably existed prior to service. Service treatment records show that the Veteran was treated on numerous occasions during service for right ankle injuries. In July 1978, he missed a step and sprained his ankle. The report from an orthopedic consultation indicated that he had a history of previous ankle injuries with no fracture. X-rays were taken on July 9, 1978 to rule out a fracture. The x-rays showed a minimal bony irregularity and small extra bony bodies around the medial and lateral malleoli. The radiologist found no evidence of any acute changes and stated that the x-rays showed apparently old changes (again, the Veteran had been in service for fewer than four months at this point). The orthopedic examination found the Veteran had tenderness over the medial malleolus with minimal swelling. The impression was ankle sprain. The Veteran was given a temporary profile for a month with no marching, prolonged standing or running. A second set of x-rays was taken on July 20, 1978. The previously described deformity of the medial malleolus and the lateral malleolus, compatible with the old avulsion fracture, were again noted. Tissue swelling had disappeared from the earlier x-rays. In August 1978, the Veteran's temporary profile was extended with no marching or running again ordered for one month. In November 1978, the Veteran twisted his right ankle coming down stairs. There was moderate swelling around the right medial malleolus with moderate tenderness. X-rays were negative for any fracture, but showed calcifications inferior to both the medial and lateral malleoli that were consistent with residuals from previous serious sprains. The Veteran was given crutches. In March 1980, the Veteran severely sprained his right ankle. He complained of chronic ankle weakness, and was given a walking case for three weeks. In May 1980, the Veteran was again evaluated by the Surgical Clinic. It was noted that he had experienced frequent ankle sprains "on both sides" and frequent ankle injuries bilaterally since junior high school. A physical examination of the right ankle revealed a very prominent medial malleolus which to palpation was of a bony nature, suggesting early bone damage during his developmental growth period. X-rays of the ankles revealed more laxity on the left than on the right. It also showed an abnormal medial malleolus with a bony overgrowth on the medial aspect of the medial malleolus and absence of the tip of the medial malleolus. The medical officer explained that this suggested an injury during the period of skeletal growth in either the Veteran's early teens or childhood years. The examiner concluded this "clearly" existed prior to service and was not related to the Veteran's recent strains and injuries. It was noted that the Veteran was an avid basketball player and did not want to give up playing so the medical officer advised him to tape his ankles and to undergo physical therapy to strengthen his ankles. There were no additional complaints about the Veteran's right ankle in service. No separation physical appears to have been conducted. The earliest post-service medical evidence in the file consists of VA medical records for treatment between 1983 and 1987. In December 1984, the Veteran was treated for a right ankle sprain after he stepped off a curb and twisted it. The rest of these records show no relevant complaints. Turning to the first prong of the presumption of soundness rebuttal, the evidence clearly and unmistakably shows that the Veteran's right ankle disabilities existed prior to service. Within months of the Veteran's enlistment into service, x-rays showed an "old" avulsion fracture of the right ankle. Additionally, the medical officer in 1980 explained that x-rays of the right ankle suggested an injury during the period of skeletal growth in either the Veteran's early teens or childhood years. The examiner concluded this "clearly" existed prior to service. The Veteran's case was reviewed by an examiner in January 2013, who also concluded that the Veteran's avulsion fracture of the right ankle existed prior to service. There has not been any conflicting medical evidence suggesting that the avulsion fracture of the right ankle began in service. Indeed, the JMR did not disagree with the conclusion that the avulsion fracture of the right ankle existed prior to service. Rather, the JMR focused on whether there was a second right ankle disability which was caused by the Veteran's service. As such, the Board concludes that the evidence clearly and unmistakably shows that the Veteran's avulsion fracture of the right ankle existed prior to service. Turning to the issue of the Veteran's chronic right ankle sprains, the evidence suggests that the Veteran began spraining his ankle prior to service. For example, x-rays in November 1978 showed calcifications inferior to both the medial and lateral malleoli that were consistent with residuals from previous serious sprains. It is noted that there had only been one documented right ankle sprain during the Veteran's military service at the time of those x-rays, and thus the suggestion that the condition of the ankle was the result of multiple sprains necessarily suggests that the condition existed prior to service. Additionally, at the consultation in March 1980, the surgeon noted that the Veteran had reported experiencing frequent ankle sprains "on both sides" and frequent ankle injuries bilaterally since junior high school. This time would clearly predate military service. To the extent that the Veteran has subsequently asserted that he did not have any ankle problems prior to service, the Board finds that such post-service statements are not given any weight, as the in-service statements were made in conjunction with seeking treatment, giving them greater probative value, as the Veteran would have incentive to accurately report his medical history in order to receive the best possible care. This is contrasted with statements made years later and in conjunction with the pursuit of benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest is recognized as a factor which may affect the credibility of a claimant's statements). Additionally, the examiner in January 2013 indicated that the Veteran's right ankle sprains preexisted service. While this examiner did not use the words "clearly and unmistakably preexisted service" the Board believes that it is the role of the Board to determine whether the evidence of record as a whole shows that the right ankle sprains existed prior to service. That is, the examiner's opinion is one piece of evidence which the Board must consider in conjunction with the rest of the evidence of record in determining whether the evidence of record clearly and unmistakably shows that the Veteran's right ankle sprain existed prior to service. As described, the medical evidence and opinions from both during service and following service, including the Veteran's own statements in service, all establish that his right ankle sprains pre-dated his military service; and the Veteran's opposition to this conclusion is not entitled to any weight in that it is in direct opposition to more probative evidence. As such, the Board finds that both of the Veteran's current, chronic right ankle disabilities existed prior to service. The inquiry now turns to whether the evidence clearly and unmistakably shows that either disability was not aggravated by service. With regard to the Veteran's avulsion fracture of the right ankle, the evidence meets this standard. As noted, the medical officer in service explained that the x-ray showing of an abnormal medial malleolus with a bony overgrowth on the medial aspect of the medial malleolus and absence of the tip of the medial malleolus appeared to be an injury during the period of skeletal growth in either the Veteran's early teens or childhood years. The medical officer concluded this "clearly" existed prior to service and was not related to the Veteran's recent strains and injuries. Additionally, the x-rays that were taken of the Veteran's right ankle during his military service, were not interpreted as showing changes in the disability. While the Veteran clearly sprained his right ankle on multiple occasions during service, there is no documentation that such sprains further injured, or permanently aggravated, the avulsion fracture of his right ankle. The examiner in 2013 also stated that the Veteran's pre-existing avulsion fracture of the right ankle was not related to an in-service event or injury and was not permanently aggravated by his service. Again, the Board acknowledges that the examiner did not use the words clear or unmistakable, but her opinion was stated in an unequivocal manner. This opinion is unquestioned by the other medical evidence of record and it is supported by the service treatment records and post-service medical evidence of record. As such, the Board concludes that the Veteran's pre-existing avulsion fracture of the right ankle was clearly and unmistakably not aggravated by his military service, to include as a result of the ankle injuries he experienced therein. Moreover, before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service. See Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) (the presumption of soundness does not "relieve the veteran of the burden of showing that [he] suffered from a disease or injury while in service"); Horn v. Shinseki, 25 Vet. App. 231, 236 (2012) ("In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service."). Here, there has been no showing of worsening of the avulsion fracture of the right ankle in service. As such, even if the Board's conclusion that the presumption of soundness was rebutted were found to be in error, there is no showing of an in-service manifestation of the avulsion fracture of the right ankle. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012) (presumption of soundness applies only when there is manifestation of a disease or injury during service). Rather, the avulsion fracture was noted as an incidental finding on an x-ray. As such, service connection would still not be warranted. Accordingly, the claim for service connection for a avulsion fracture of the right ankle is denied. The Board must also address the issue of the Veteran's right ankle sprains in service. Here, the examiner in January 2013 stated that because the Veteran sprained his right ankle during service, she could not determine if the pre-existing right ankle sprains were permanently aggravated without resorting to speculation. She noted that there was no evidence in the record that rendered it undebatable from a medical standpoint that the disability increased in severity during service or that it was not permanently aggravated. The Board finds that this result does not meet the affirmative requirement that the disability was not permanently aggravated by the Veteran's service. Because the Board cannot make this showing, the presumption of soundness is not rebutted with regard to the Veteran's chronic right ankle sprains. However, the fact that VA was unable to rebut the presumption of soundness does not mean that service connection must be granted. Rather, whether service connection is granted depends on if the two elements of a service connection claim (other than in-service incurrence) are met. Turning to the elements of service connection, the Veteran clearly has a current right ankle disability, as the examiner in January 2013 diagnosed him with a chronic right ankle sprain. As such, the present disability requirement has been met. The service treatment records recounted above also clearly show that the Veteran experienced several right ankle sprains in service which were termed "severe" which required a two-month temporary profile on one occasion, and which required casting on another occasion. Therefore, the Veteran clearly had an in-service injury. As such, the lone question for the Board to address is whether the Veteran's current chronic right ankle sprain disability resulted from the ankle sprains in service. It is noted that the Veteran has been diagnosed with arthritis in his right ankle on several occasions. In February 2012, a Dr. Lee stated that x-rays revealed significant arthritis in the Veteran's right ankle. Likewise, the VA examiner in October 2009 diagnosed the Veteran with right ankle arthritis. Arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies in this instance. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Here, the Board has obtained several medical opinions during the course of the Veteran's appeal at which the examiners concluded that a current ankle disability could not be related to the Veteran's military service without resort to speculation. However, these opinions were found to be inadequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that where VA provides the veteran an examination in a service connection claim, even if not statutorily obligated to do so, the examination must be adequate). As such, these opinions are afforded no weight. In a June 1998 private treatment record from the Cleveland Foot and Ankle Clinic it was noted that the Veteran had complained of pain in both his ankles for 20 years. To this end, the Board notes that lay testimony is competent to establish the presence of observable symptomatology, such as pain, and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the Veteran credibly reported right ankle pain dating to his military service. Moreover, this treatment record was recorded prior to the Veteran ever seeking service connection, adding weight to its reliability in that it was not rendered in pursuit of disability benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Additionally, the Veteran reported to Dr. Lee in February 2012 that he had injured his right ankle in service and had experienced pain since. This serves as another example of the Veteran consistently relating his right ankle pain to his sprains in service. The Board acknowledges that the Veteran did sprain his right ankle in 1984 following service, but it is noted that the sprain was only first degree in nature, and therefore appears to be of considerably less severity than the right ankle sprains he incurred in service. As noted, the Veteran has credibly reported continuous right ankle pain since service that was eventually diagnosed as a chronic right ankle sprain with arthritis, the Board finds that such statements are sufficient to satisfy the continuity element of presumptive service connection. Thus, service connection for a chronic right ankle sprain is granted. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in August 2004, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. In a May 2011 decision, the Board explained that while the letter was not sent until after the initial adjudication of the Veteran's claims in December 1998, it addressed all of the notice elements and the claims were subsequently readjudicated in January 2006 and June 2009 SSOCs. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating the claim and notifying claimant of such readjudication in the statement of the case). The Board also found that letters in March 2006 and April 2007 provided the Veteran with notice that addressed the relevant rating criteria and effective date provisions. Therefore, the Board found that VA had fulfilled its duty to notify under the VCAA. While the Board's decision was ultimately vacated by the Court, the fact remains, that the JMR did not assert any problems with the notice that had been provided. Moreover, since that time, neither the Veteran, nor his representative has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). All available service treatment records, as well as all identified VA and private medical records for which the Veteran provided a release, are in the claims file. As previously noted, an October 2005 response from the SSA indicated that the Veteran's SSA folder could not be located. In August 2004, the VAMC in Brecksville responded that it did not have records for the Veteran dated in the 1980s or early 1990s, and, in May 2007, the Cleveland VAMC responded that it did not have records for the Veteran dated in the 1980s. In the 2004 Remand, the Board requested that several private medical records be obtained, to include from the Cleveland Clinic, Pickaway Correctional Institute, State of Ohio (workers' compensation benefits), the Cleveland College of Podiatry, and any other private physician that had treated the Veteran. Through a variety of letters, the RO did indeed attempt to obtain the appropriate releases from the Veteran to obtain these records, but was not successful. When the case was remanded again in 2006, the Board advised the Veteran that he could complete the necessary releases for any records he wanted VA to request or he could obtain the records and submit them. In January 2007, VA sent the Veteran a duty to assist letter requesting that he submit a release for any private treatment. There is no indication that the Veteran returned a completed release prior to the Board's third remand of these claims in September 2009. In 2010, the Veteran submitted private treatment records from the Sunrise Hospital and The Cleveland Clinic. He did not request that any other private medical records be obtained. Since the Veteran has had more than ample opportunity to either submit releases for VA to request his records or submit the records himself, no further action will be taken with respect to any outstanding private medical evidence. Thus, there are no outstanding VA or private medical records to obtain. 38 C.F.R. § 3.159(c)(1), (2). It is noted that the JMR also did not voice any disagreement with the conclusion that the duty to assist had been satisfied as to obtaining treatment records. Additionally, the Veteran testified at a hearing before the Board. With regard to the examinations that were provided to the Veteran, there has been considerable discussion as to their adequacy. The JMR was in fact premised on a finding that the February 2010 addendum to an October 2009 VA examination report was tainted; and it was suggested that the Board obtain an additional examination. This subsequent examination was provided in January 2013, and the Board finds it to be fully adequate, in that it provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for avulsion fractures of the right lateral and medial malleolus is denied. Service connection for chronic right ankle sprains is granted. REMAND In his October 2010 substantive appeal, the Veteran requested a Travel Board hearing with regard to his claims for increased ratings for keloids and pseudofolliculitis barbae. In March 2012, the Veteran's representative confirmed the Veteran's continued desire for a Travel Board hearing with regard to these issues. When this case was last before the Board in May 2012, the Board declined to remand the claims, giving the RO the opportunity to provide the requested hearing. Since it is now 18 months later and that hearing has yet to be scheduled, the Board will formally remand the claims to ensure that hearing request is not overlooked. Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a Travel Board hearing at the RO in Cleveland, Ohio. He and his representative should be notified of the date and time of the hearing, as appropriate. The Veteran 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. ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs