Citation Nr: 1604780 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 11-05 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile and adaptive equipment or adaptive equipment only. 3. Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1963 to June 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from April 2009 and April 2012 rating decisions by the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). In August 2015 a videoconference hearing was held before the undersigned; a transcript is in the record. A March 1976 letter informed the Veteran that service connection for a right ankle fracture was denied. However, not all of the Veteran's service treatment records (STRs) were in the record at the time of that determination. He subsequently sought to reopen such claim, at which time the Agency of Original Jurisdiction (AOJ) secured additional STRs, including some showing treatment for right ankle complaints. Accordingly, as provided by governing regulation (See 38 C.F.R. § 3.156(c)) de novo review of the claim is warranted. The appeal is REMANDED to the. VA will notify the appellant if further action on his part is required. REMAND Although the record clearly shows that the Veteran sustained a serious right ankle injury prior to service (in his youth) with fractures of the tibia and fibula and resulting shortening of the leg, a right ankle disability was not noted on induction. Therefore, under 38 U.S.C.A. § 1111, he is entitled to a presumption of soundness on entry in service with respect to a right ankle disability, and that presumption is rebuttable only by clear and unmistakable evidence. And as he was seen for right ankle complaints/injury during service, if the presumption of soundness on entry is rebutted he is further entitled (under 38 U.S.C.A. § 1111) to a presumption that the right ankle disability was aggravated by service, which presumption likewise is rebuttable only by clear and unmistakable evidence. While the clinical findings of old right ankle pathology in service and following service (considered with the histories provided by the Veteran) may constitute clear and unmistakable evidence of pre-existing (i.e., to service) right ankle disability, they do not constitute clear and unmistakable evidence of nonaggravation of the pre-existing right ankle disability, particularly in light of the right ankle injury the Veteran sustained in service. The July 2009 VA examiner's opinion is also, while probative evidence, insufficient to constitute clear and unmistakable evidence of nonaggravation; notably there is a subsequent private provider's opinion to the contrary. Accordingly, further development of the medical evidence in this matter is necessary. The Veteran also seeks certificates of eligibility for financial assistance for the purchase of an automobile and adaptive equipment or for adaptive equipment only, and for assistance in acquiring specially adapted housing or a special home adaptation grant. These claims were denied by the RO in April 2012 based, in part, on the fact that the Veteran's use of a wheelchair was due to a [nonservice-connected] lumbar spine disability (and not for qualifying disability of the lower extremities). Thereafter, in February 2015, the RO awarded service connection for a low back disability and peripheral neuropathy of both lower extremities, which required readjudication of the claims for these benefits in light of awards. As such did not occur, corrective action is necessary. Furthermore, the medical evidence of record is insufficient to resolve whether the Veteran has service connected disabilities qualifying for the housing and automotive benefits sought. On March 2015 VA examination (for aid and attendance purposes) it was noted that the Veteran had limitation of lumbar spine motion; there were no findings regarding whether he has loss of use of a lower extremity. In September 2015, a VA physician stated the Veteran was wheelchair bound due to debilitating back pain, and had loss of use of his lower extremities (but did not identify the clinical findings underlying that conclusion). Service connection is currently in effect for posttraumatic stress disorder, rated 100 percent; lumbar strain with degenerative disc disease, rated 20 percent; residuals of a left buttock gunshot, with Muscle Group XVIII injury, rated 20 percent; peripheral neuropathy of both lower extremities, rated 20 percent, each; tinnitus, rated 10 percent; malaria, rated 0 percent; bilateral hearing loss, rated 0 percent; and a left buttock scar, rated 0 percent. [Service connection had also been established, effective October 5, 2010, for residuals of gunshot wounds to Muscle Groups XVI and XVII, but was severed, effective June 30, 2015.] Accordingly, the case is REMANDED for the following action: 1. The Veteran should be asked to identify all providers of evaluations and/or treatment he has received for his right ankle since his discharge from service, to include the information pertaining to treatment he received associated with his noted multiple ankle fusion surgeries, and to submit authorizations for VA to secure records of any such private evaluations and treatment. The AOJ should secure for the record complete clinical records of the evaluations and treatment from all providers identified (i.e, any such records not currently associated with the Veteran's record). 2. Thereafter, the AOJ should arrange an orthopedic examination of the Veteran to ascertain the etiology of his right ankle disability and whether he has service connected disability of a nature qualifying for the housing and automotive benefits sought [if neurological consult is deemed advisable for the latter determination, such should be arranged . The Veteran's record should be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated should be completed. The examiner should describe all right ankle pathology found in detail. Based on review of the record and examination and interview of the Veteran: (a) Regarding the right ankle (and noting the legal presumption of aggravation applicable in this case and the treatment for right ankle injury in service), the examiner should opine whether there is any evidence in the record that renders it undebatable from a medical standpoint that the Veteran's service pre-existing right ankle disability was not aggravated by his service? If so, please identify such evidence. (b) Regarding the Veteran's claims for automobile and housing benefits the examiner should indicate whether the Veteran's service-connected disabilities (listed above) result in (i) loss of use of one or both feet; (ii) loss of use of one or both hands; (iii) loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (iv) loss of use of one lower extremity together with residuals of organic disease or injury that so affects the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or (v) loss of use of one lower extremity together with the loss of use of one upper extremity that so affects the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. The examiner must include rationale with all opinions. 3. The AOJ should then review the record and readjudicate the claims on appeal (those for automotive and housing benefits in light of all rating determinations made since the claims were last previously adjudicated, and following any further development indicated). If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ GEORGE R. SENYK 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).