Citation Nr: 1338673 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 11-00 198A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for bilateral ankle disability. REPRESENTATION Appellant represented by: National Association of Black Veterans ATTORNEY FOR THE BOARD J. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin that in relevant part denied service connection for bilateral ankle disability. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. 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 The Board must remand the claim for bilateral ankle disability for a VA medical examination. A VA examination and opinion are needed. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was never afforded a VA examination and opinion that address the extent of the Veteran's current bilateral ankle disability and whether that disability is directly service-connected. The Veteran's private treatment records from February 2004 diagnose him with bilateral ankle degenerative joint disease, right greater than left. However, the private examiner did not opine as to the etiology of the impairment. The Veteran mentioned in his November 2009 statement that he injured his ankles while playing basketball during service, and that he was told at that time, that the injury would later result in arthritis. Furthermore, the Veteran's Form DD 214 shows an award of the Parachute Badge and Airborne Training, indicating multiple parachuting jumps and subsequent impact with the ground. However, there is not presently enough information of record to resolve the issue. For the foregoing reasons, the Board finds that a VA examination should be issued concerning the Veteran's claim for bilateral ankle disability. The examiner should offer an opinion as to whether there is a current bilateral ankle disability, and if so, whether it is directly related to service. All lay and medical evidence should be considered, to include any assertions of continuity of symptomatology that may be made by the Veteran. In this regard, the Board notes that the Veteran is competent to report observable symptomatology, and the lack of contemporaneous medical records does not, in and of itself, render such lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). However, this may be weighed against other lay and medical evidence of record. Accordingly, the case is REMANDED for the following action: 1. The AMC should schedule a VA examination to address the etiology of the Veteran's bilateral ankle disorder. All pertinent evidence, including information in Virtual VA and VBMS, should be made available to the examiner for review, and such review should be noted in the opinion report. The examiner should determine the following: a. The diagnosis of any bilateral ankle disability which may be present. b. Whether any such bilateral ankle disorder is at least as likely as not (at least a 50-50 probability) incurred as a result of the Veteran's in-service basketball injury, parachute landings, or any other incidents of service c. Whether it is at least as likely as not (at least a 50-50 probability) that the Veteran had arthritis of the ankles within one year of his March 1972 service discharge. d. A complete rationale should be provided for all opinions given. The opinion should take into consideration and address the Veteran's reported injury in service, his parachute jumps in service, and all other pertinent incidents of service. 2. Then, the AMC should readjudicate the claim on the merits. If the benefit sought is not granted, the Veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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 CONTINUE ON THE NEXT PAGE 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). _________________________________________________ K. OSBORNE 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).