Citation Nr: 1417798 Decision Date: 04/21/14 Archive Date: 05/02/14 DOCKET NO. 10-23 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral ankle disability. 2. Entitlement to service connection for a right hip disability. ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from September 1997 to January 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The case was previously before the Board in August 2011 and February 2013 and was remanded for further evidentiary development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was provided a VA examination in September 2011 in conjunction with the claims on appeal. In a February 2013 remand, the Board found that the medical evidence of record was unclear as to whether the Veteran had current disabilities of the right hip and bilateral ankles and requested clarification as to whether the Veteran had a disability of the right hip and bilateral ankles. An addendum was obtained in April 2013, wherein the VA examiner indicated that the Veteran was diagnosed with polyarticular arthritis and chronic tendonitis of the bilateral ankles by an orthopedic surgeon in 2009; it was noted that x-rays were negative in 2009. However, the examiner opined that the Veteran's current bilateral ankle disability was less likely as not related to or a result of military service. In reaching this conclusion, the examiner noted that despite the Veteran's ankle pain complaints in December 1999, as well as on his September 2001 separation examination, there was no further documentation of bilateral ankle condition during service. In regard to the Veteran's right hip, the examiner also opined that the Veteran's polyarticular arthritis was as less likely as not related to military service. In support of this opinion, the examiner stated that although service treatment records show complaints of right hip pain, hip examination was normal and there was no documentation of continued hip complications during service or after discharge from service until he was diagnosed with polyarticular arthritis 7 years later. However, the Board finds that the April 2013 VA medical opinion is inadequate because the rationale for the opinion was primarily based on the lack of documentation of bilateral ankle or right hip problems after the Veteran's separation examination. See Buchanan v. Nicholson, 451 F.3d at 1336-37 (holding that although "the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible."); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate). The VA examiner neglected to consider the Veteran's statements concerning symptoms experienced in service and continued after service. In this regard, the Veteran reported in his August 2009 notice of disagreement and during the September 2011 VA examination that the onset of his bilateral ankle and right hip pain was in service and the pain continued ever since that time. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994). Instead, the examiner determined, incorrectly, that lack of documentation of the conditions continuing after service is the only evidence which can provide the basis for an opinion concerning etiology. The September 2011 VA examination report stated that the Veteran's joint complaints during service appeared to be acute and there did not appear to be any link between the Veteran's bilateral ankle and right hip conditions and previous military conditions. However, the examiner provided no explanation of the basis for such opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Given the deficiencies in the VA medical opinions of record, the Board must remand this case for supplemental medical opinions. See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if record before the Board contains insufficient medical information for evaluation purposes); Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records from the VA Medical Center (VAMC) in Battle Creek, Michigan and any associated outpatient clinics dated from May 2012 to the present. 2. Thereafter, schedule the Veteran for a VA examination by an individual with the appropriate expertise other than the September 2011 or April 2013 VA examiner to determine the etiology of the Veteran's bilateral ankle and right hip disabilities. The claims file should be made available to the examiner in conjunction with the examination. Any and all indicated evaluations, studies, and tests should be accomplished. The examiner must provide an opinion, in light of the examination findings, the service and post service medical evidence of record, and the lay statements of record, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current bilateral ankle and/or right hip disability had its onset in service or otherwise are related to his military service, with consideration of his lay statements as to the presence of symptoms since service. A complete rationale should be provided for all opinions expressed. In rendering the requested opinion and rationale, the examiner must note that the fact that there is no documentation of treatment in service or post service is not necessarily fatal to the Veteran's claims and cannot be the only basis by which to reject a possible nexus to service. 3. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claims. Failure to report for a VA examination without good cause may result in denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). 4. After completing the above development, and any other development deemed necessary, readjudicate all claims on appeal taking into consideration any newly acquired evidence. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. The appellant 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 (West Supp. 2013). _________________________________________________ U. R. POWELL 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).