Citation Nr: 1417982 Decision Date: 04/22/14 Archive Date: 05/02/14 DOCKET NO. 09-02 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right ankle disorder, to include as secondary to a service-connected disability. 2. Entitlement to service connection for a low back disorder, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1996 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claims for entitlement to service connection for a right ankle disorder and a low back disorder. The Board remanded the issues on appeal for further development in February 2012. The Board's February 2012 remand instructions and the subsequent actions of the VA Appeals Management Center (AMC) will be further discussed below. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Reasons for Remand: To procure relevant VA treatment records, to provide the Veteran with adequate VA medical opinions, and to ensure compliance with prior Board remand directives. Pursuant to the Board's February 2012 remand directives, the Veteran's claims file was referred for an addendum opinion regarding the etiology of his right ankle and low back disorders. In February 2012, the VA examiner who conducted the Veteran's September 2007 examination opined that it was less likely than not that the Veteran's low back disorder is proximately due to or the result of the Veteran's service-connected condition. He stated that the Veteran's scoliosis is congenital and is not a result of the hip disorder. Although specifically directed to provide an opinion with regard to whether the low back disorder was aggravated by the service-connected right hip disorder and to provide a complete rationale, the examiner provided neither. Additionally, although the VA examiner provided a diagnosis of right ankle strain in his September 2007 opinion, and noted that x-rays of the right ankle showed mild soft tissue swelling over the right lateral malleolus, in February 2012, the examiner stated that "there is no diagnosable 'injury' of the ankles" other than the Veteran's subjective complaints of intermittent pain. Once again, although the examiner was asked to provide an opinion regarding aggravation, no such opinion was proffered. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Because the VA examiner did not provide opinions regarding the likelihood that the Veteran's service-connected right hip disorder aggravated the claimed disabilities and did not provide sufficient rationale for his conclusions, the Board finds the opinions to be inadequate. On remand, an adequate addendum opinion must be obtained which addresses the aforementioned deficiencies. Finally, the most recent VA treatment record contained in the Veteran's VA claims file is a January 2009 physical rehabilitation physician note from the Central Arkansas Health Care System (HCS). The record indicates a plan to obtain x-rays of the Veteran's spine. Follow-up notes are absent from the record. Thus, it is likely that the Veteran has received VA treatment relevant to his claimed disabilities since January 2009, and those records remain outstanding. VA treatment records are constructively of record and on remand, must be obtained and associated with the Veteran's VA claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); see also 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all VA treatment records from January 2009 to the present from the Central Arkansas HCS, and associate them with the file. All efforts to obtain such records must be fully documented and VA facilities must provide a negative response if no records are found. 2. Thereafter, refer the Veteran's VA claims file to an appropriate VA medical professional who has not previously examined the Veteran, for a supplemental opinion as to the nature and etiology of the Veteran's right ankle disorder. The examiner must be given full access to the Veteran's complete VA claims file and the Veteran's electronic records for review. The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination. If, after review of the file, the examiner determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. The examiner then must address the following: a. Provide a diagnosis for each of the Veteran's currently-present right ankle disorders, as well as any chronic right ankle disorders noted during the relevant claim period (June 2007 to present). b. Provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right ankle disorder was caused by his service-connected right hip disorder. c. Provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right ankle disorder was aggravated by his service-connected right hip disorder. (For purposes of this analysis, 'aggravation' is defined as a permanent worsening of the not service-connected disability beyond that due to the natural disease process.) (The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) The examiner must include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 3. After completing the development requested by instruction #1, refer the Veteran's VA claims file to an appropriate VA medical professional, other than the individual who conducted the September 2007 VA examination, for a supplemental opinion as to the nature and etiology of the Veteran's low back disorder. The examiner must be given full access to the Veteran's complete VA claims file and the Veteran's electronic records for review. The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination. If, after review of the file, the examiner determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. The examiner then must address the following: a. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's low back disorder was caused by his service-connected right hip disorder. b. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's low back disorder was aggravated by his service-connected right hip disorder. (For purposes of this analysis, 'aggravation' is defined as a permanent worsening of the not service-connected disability beyond that due to the natural disease process.) (The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) The examiner must include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).