Citation Nr: 1337513 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-29 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a left hand disability. 2. Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active duty service from June 1955 to January 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Huntington, West Virginia. Jurisdiction was subsequently transferred to the RO in Detroit, Michigan. A review of the Veteran's Virtual VA electronic folder (efolder) includes the Informal Hearing Presentation submitted by the Veteran's representative on his behalf. No other pertinent documents that have not already been associated with the physical claims folder are of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 A VA examination is necessary for both the claimed left hand and ankle disabilities. Although the Veteran has not provided detailed statements to support his claims, he generally asserts that he has current left hand and ankle disabilities related to service. See October 2009 claim. His service treatment records are missing and VA has a heightened duty to assist him. The available VA treatment records show that osteoarthritis is a current problem. In this case, the Board finds that the McLendon elements for triggering VA's duty to provide an examination are satisfied. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, updated medical records must be obtained as detailed below. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Take the necessary steps to obtain all records of VA treatment for the claimed left hand and ankle disabilities. Efforts to obtain VA records must continue until they are obtained, or it is reasonably certain that they do not exist or that further efforts would be futile. Request that the Veteran identify any private treatment records for his claimed left hand and ankle disabilities and furnish release authorization for private medical records. If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. If any requested records cannot be obtained, inform the Veteran of this fact, of the efforts made to obtain the records and of any additional efforts that will be made with regard to his appeals. 2. After associating any newly generated medical records from the above request with the claims folder, schedule the Veteran for a VA examination. A clinical examination with all indicated tests and studies should be conducted. The claims folder, this remand, and access to the Virtual VA/ VBMS efolder, must be given to the examiner for review. The examiner must provide the following opinions: (a) Is it at least as likely as not (50 percent probability or more) that any current left hand disorder is attributable to the Veteran's period of military service? (b) Is it at least as likely as not (50 percent probability or more) that any current left ankle disorder is attributable to the Veteran's period of military service? The examiner must provide a detailed rationale for the opinions. As noted, service treatment records are not available. However, the Veteran is competent to report on his in-service injuries and his recollections of medical treatment. His reports must be considered. If the examiner rejects the lay reports, he or she must so state and explain why. An absence of contemporaneous medical treatment, standing alone, cannot be the basis for rejecting the lay reports. The medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since service should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. The AOJ should ensure that the examination report complies with the instructions in this remand. Thereafter, the AOJ should undertake any additional evidentiary development deemed appropriate and re-adjudicate the claims. If a benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case and provide opportunity for response before the case is returned to the Board. 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). _________________________________________________ J. A. MARKEY 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).