Citation Nr: 1511303 Decision Date: 03/17/15 Archive Date: 03/27/15 DOCKET NO. 09-44 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right ankle disability, to include sprain and/or degenerative joint disease. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for residuals of a left eye injury. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from February 1984 to March 2004. This matter has come before the Board of Veterans' Appeals (Board) on appeal from September 2008 and September 2014 rating decisions of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). The September 2008 rating decision, in part, denied service connection for a right ankle disability, to include sprain and/or degenerative joint disease. The September 2014 rating decision denied service connection for a low back disability and residuals of a left eye injury. On his VA Form 9 for his right ankle claim, the Veteran had originally requested a Board hearing. In December 2009, the Veteran withdrew that hearing request. Thus, the Veteran's request for an appeals hearing is withdraw. See 38 C.F.R. §20.704(e). In a June 2013 decision, the Board denied the Veteran's claim for service connection for a right ankle disability, to include sprain and/or degenerative joint disease. The Veteran appealed the Board's June 2013 decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2013 Memorandum decision, the Court vacated the Board's decision and remanded this matter to the Board for development and readjudication. The Board notes that there is an electronic claims file associated with the Veteran's claim, which contains relevant evidence that will be considered by the Board in this appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claims for entitlement to service connection for a right ankle disability, a low back disability and residuals of a left eye injury. One of the matters the Board must address is which issue or issues are properly before it at this time. Under the provisions of 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely- filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. In a September 2014 rating decision, the RO, denied service connection for a low back disability and residuals of a left eye injury. In an October 2014 correspondence, the Veteran filed a notice of disagreement (NOD) with the denial of service connection for a low back disability and residuals of a left eye injury. While the Veteran expressed disagreement with the September 2014 rating decision, it appears that no subsequent statement of the case was ever issued. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that the issues of entitlement to service connection for a low back disability and residuals of a left eye injury remain pending in appellate status (see 38 C.F.R. § 3.160(c)) and require further action. See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. In this regard, it is noteworthy that these claims are not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal. The Board's actions regarding these issues are taken to fulfill the requirements of the Court in Manlincon. Regarding the Veteran's claim for service connection for a right ankle disability, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A veteran's report of a continuity of symptomatology can satisfy the requirement for evidence that the current condition is related to service. Kowalski v. Nicholson, 19 Vet App 171 (2005). The Veteran underwent a VA examination in May 2009. The May 2009 VA examiner opined that it was less likely as not that the Veteran's right ankle degenerative joint disease was related to his right ankle sprain during military service. The claims file was reviewed and the Veteran's reports of intermittent ankle pain since service were noted, but the examiner was unable to establish chronicity of the condition based on the medical reports available. However, the May 2009 VA examination is inadequate. As noted by the October 2014 Memorandum decision, the May 2009 VA examiner's opinion lacked adequate rationale as it failed to explained why chronicity was necessary to relate the Veteran's right ankle condition to service, or why chronicity would not be established by the numerous service records reflecting right ankle problems over the length of the Veteran's service, or by his undisputed complaints of symptoms. Notably, the Veteran had credibly described continuous intermittent pain in the right ankle and a feeling that his ankle could be further injured. Given the facts noted above, the Board finds that the evidence currently of record is insufficient to resolve the claim for service connection for a right ankle disability, and that further medical opinion in connection with this claim is warranted which considers the Veteran's history and contains a comprehensible, detailed and well-reasoned rationale. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) (4). Accordingly, the Board finds that a new VA examination is need to determine whether or not the Veteran has a current right ankle disability and if so, to provide an opinion to determine the nature and etiology of any current right ankle disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that once the VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, the VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The RO should issue a statement of the case to the Veteran addressing the matters of entitlement to service connection for a low back disability and residuals of a left eye injury, including citation to all relevant law and regulation pertinent to these claims. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if the appeal is timely perfected, these issues are to be returned to the Board for further appellate consideration, if otherwise in order. 3. The Veteran should be provided an examination by an appropriate VA physician to evaluate the etiology of his claimed right ankle disability. Based on a review of the record and an examination of the Veteran, the physician should offer an opinion as to whether the Veteran has a current right ankle disability and if so, whether it is at least as likely as not (50 percent probability or greater) that such disability is related to the Veteran's service. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. A detailed rationale for any opinion expressed should be provided. In providing these opinions, the examiner must address the in-service treatment records reflecting numerous complaints of right ankle problems over the duration of the Veteran's service, as well as the Veteran's credible statements describing continuous intermittent pain in the right ankle and a feeling that his ankle could be further injured. The examiner must provide supporting rationale for the opinions rendered, cite to the relevant evidence of record, and reconcile any contradictory evidence of record. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, but further explain in detail why it is not feasible to provide such a medical opinion based on both the evidence in the record and whether additional testing is necessary. If such testing is necessary, the examiner identify what diagnostic studies would help resolve this question. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 2014). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).