Citation Nr: 1337583 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 08-12 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES Entitlement to service connection for a right ankle disability, to include residuals of right fibula fracture and arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and two of his children ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The appellant had verified active duty for training (ACDUTRA) in the U.S. Marine Corps Reserve from March 1981 to July 1981. He also had periods of unverified Reserve duty from 1981 to 1987. The record reflects, and the appellant avers, that he sustained an injury during a weekend drill on October 13, 1984. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Augusta, Maine. Jurisdiction over the matter was later transferred to the Detroit, Michigan RO. In July 2008, the appellant and two witnesses testified before a Decision Review Officer (DRO) in Detroit, Michigan. A transcript of that hearing is of record. In December 2011, this matter was last before the Board, at which time the Board denied the claim. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Counsel for the appellant and the Secretary of VA (the parties) filed a Joint Motion for Remand (JMR). An Order of the Court dated January 8, 2013, granted the motion and remanded the case to the Board. In the JMR, the parties noted that there existed some confusion as to whether the Vietnam Veterans of America (VVA) or Disabled American Veterans (DAV) represented the appellant in the current matter. The parties noted that the appellant had appointed VVA as his representative in October 2006 and that VVA had filed an Informal Hearing Presentation on the Veteran's behalf in March 2011. However, the parties pointed out that in October 2011 DAV filed a request to expedite processing and waiver of time to submit additional evidence, although no other document notifying the Board of a change of representation was of record. In reviewing the claims file, the Board notes that in September 2010 the appellant executed a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) appointing DAV has his representative. The form, however, was not of record at the time the parties filed the JMR. As this document expresses the clear intent of the appellant to have DAV represent him, the issue raised in the JMR concerning who represents the Veteran has been resolved. 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 In the JMR, the parties agreed that VA had failed in its duty to assist the appellant. Specifically, they noted that at a July 2008 DRO hearing the appellant reported the presence of work records that would show that the appellant had missed work due to his claimed right ankle disability, and particularly closer to the time of the in-service injury. They noted also that in an October 2009 IHP, the appellant requested assistance in obtaining these records, but VA never offered any assistance. Efforts to secure work records reported by the appellant should be undertaken. VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(1) (2013). Upon remand, the appellant should be asked to provide the records or authorize their release, so that VA may attempt to obtain these records and associate them with the claims file. In the JMR, the parties also took issue with the VA examinations of record in that they did not consider a February 1985 service medical record noting an impression of tibialis posterior tendonitis. A review of the VA examinations of record shows that this impression was not considered by the VA examiner that conducted the examinations. Accordingly, another VA examination is warranted. It is also noted that the appellant's service personnel records, which may also contain relevant information, have not been obtained. Accordingly, the case is REMANDED for the following action: 1. Request that the appellant provide or authorize the release of any relevant records that have not already been associated with the record, including work records showing when he was off work due to the claimed disability. If, after making reasonable efforts to obtain any outstanding records VA is unable to secure same or if after continued efforts to obtain Federal records VA concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the appellant should be notified in accordance with 38 C.F.R. § 3.159(e). The appellant must then be given an opportunity to respond. 2. Obtain the appellant's service personnel records. 3. After the above development has been completed to the extent possible, schedule the appellant for a VA examination by an appropriate medical professional for the purpose of ascertaining the presence, nature and likely etiology of the appellant's claimed right ankle disability. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and the examination report should note that the claims file was reviewed. The examiner should obtain a complete, pertinent history from the appellant concerning symptoms he has had since the ankle injury in 1984. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed right ankle disability is attributable to service. Review of the entire file is required; however, attention is invited to appellant's reports of symptoms and the February 1985 medical record noting tibialis posterior tendonitis. In rendering any requested opinion, the examiner should consider the competent and credible lay evidence reported by the appellant. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Any and all opinions must be accompanied by a discussion of the underlying reasons. 4. After the development requested above has been completed to the extent possible, review the record and readjudicate the appellant's claim. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this 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. 2013). _________________________________________________ S. S. TOTH 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).