Citation Nr: 1601665	
Decision Date: 01/14/16    Archive Date: 01/21/16

DOCKET NO.  08-34 093	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to service connection for a left ankle disability


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran and her husband


ATTORNEY FOR THE BOARD

K. Fitch, Counsel


INTRODUCTION

The Veteran served on active duty from June 1975 to February 1978.  She also served in the California National Guard from 1980 to 1988.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Oakland, California, which denied reopening of a claim of entitlement to service connection for left ankle arthritis.

The Veteran appeared at a hearing before the undersigned at the RO in September 2014.  A transcript of the hearing is in the Virtual VA.

In December 2014, this matter was reopened and remanded for additional development.  

The appeal is again REMANDED to the agency of original jurisdiction (AOJ).  The Veteran will be advised if further action is required on her part.


REMAND

Pursuant to the last remand the Veteran was afforded a new VA examination in January 2015.  The examiner opined that the Veteran's left ankle arthritis and subsequent fusion was less likely as not caused or aggravated by service to include left Achilles tendon injury in January 1977, and less likely caused or aggravated by her service-connected left Achilles tendonitis.  The examiner stated that the claimed condition was more likely due to the Veteran's weight and aging process.  

The examiner did not provide reasons for this opinion, although the remand instructions specified that the examiner should provide reasons for the opinion.  The value of a medical opinion depends on its rationale.  Nieves-Rodriguez v. Principi, 22 Vet. App. 295, 303-04 (2008).  

Accordingly, the appeal is REMANDED for the following:

1.  Ask the examiner who provided the January 2015 examination to provide reasons for the opinions that the Veteran's current left ankle disability is more likely due to age and weight than the service connected tendon disability; and that it was not aggravated by the left ankle disability.

If the examiner is not available, ask another physician to review the record and provide opinions as to whether the claimed left ankle disability at least as likely as not was caused or aggravated by a disease or injury in active service or by the service connected tendonitis.

The examiner should note that VA will not concede aggravation unless the baseline level of the non-service connected disability is established by medical evidence created before the onset of aggravation or by the earliest evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of non-service connected disease or disability.

2.  If the benefit sought on appeal remains denied, issue a supplemental statement of the case.  Then return the case to the Board, 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).


____________________________________________
Mark D. Hindin
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) (2015).