Citation Nr: 1612011 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 07-15 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for right foot and ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from April 1989 to April 1993, and from May 1993 to September 2000. The Veteran also served in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In June 2010, the Veteran testified at a hearing before the undersigned using video-conferencing technology. A transcript of the proceedings is of record. When this case was most recently before the Board in September 2014, it was remanded for further development. It is now before the Board for further appellate action. The Veteran's claims file is a "paperless" claims file. All records in the Veteran's case are maintained in Virtual VA and Veterans Benefits Management System (VBMS). The issue of service connection for temporomandibular joint (TMJ) syndrome was previously before the Board. In April 2015, the RO granted service connection for TMJ syndrome, therefore, this is considered a full grant of the Veteran's claim for service connection and the issue is no longer before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND There are two pages in the service treatment records received April 8, 2015 that are not legible and appear to provide dates for active duty for training. These pages should be rescanned. If they continue to be illegible after rescanning, the AMC/RO must request these documents again from the National Guard. If no legible documents can be obtained, the Veteran should be informed and asked to submit these documents if they are in his possession. The September 2014 remand stipulated that missing service treatment records be obtained. Service treatment records for the period from April 1989 to April 1993 remain missing from the file. Although the RO has made several attempts, it was unable to obtain these records. The Veteran should be notified that these records could not be obtained. A VA physician provided an opinion in November 2014. Since that time, service treatment records from September 1985 to May 1988 were received in December 2014. These records include documentation showing treatment for a right ankle sprain. The opinion provided by the November 2014 physician did not discuss whether the Veteran had a current right ankle disability. The examiner provided an opinion as to the right foot (pes planus and HAV deformity). An addendum opinion is needed that discusses the right ankle and the newly obtained service treatment records that note right ankle sprain. In addition, the prior remand requested that VA treatment records dating from 2008 on should be associated with the record. VA treatment records from 2015 were added to the record, however, it is unclear if any earlier records are available. Accordingly, the case is REMANDED for the following action: 1. The 3rd and 4th pages in the service treatment records received April 8, 2015 are not legible and appear to provide information on active duty for training. Please rescan these documents. If the pages remain illegible, please ask the National Guard to resubmit legible documents. If legible documents cannot be obtained, inform the Veteran that no legible documents could be obtained for these specific pages, and he is welcome to submit these documents if he has them in his possession. 2. Obtain any VA medical records dating from 2008 to May 2015. If there are no records other than those associated with the January 2012 VA examination, this should be noted in the electronic record or supplemental statement of the case. 3. Service treatment records from September 1985 to May 1988 have not been obtained. If after continued efforts to obtain the records, it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC/RO must notify the Veteran and (a) identify the specific records the AMC/RO is unable to obtain; (b) briefly explain the efforts that the AMC/RO made to obtain these records; (c) describe any further action to be taken by the AMC/RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. An addendum opinion is needed from the physician who provided the November 2014 opinion. The physician should review the service treatment records dated from September 1985 to May 1988 that were received in December 2014 which include a record showing treatment for right ankle sprain. As new records were obtained, an addendum opinion is needed that addressed the foot and the ankle. The examiner should opine as to whether the Veteran currently has a right ankle disability and, if so, is it at least as likely as not (50 percent probability or more) that the Veteran's current ankle disability is related to his military service to include ankle sprains during service? A discussion of the complete rationale for all opinions expressed should be included in the examination report. If the November 2014 physician is unavailable, another qualified health care professional should provide the opinions. If the health care professional feels that another examination is necessary in order to provide the requested opinions, then an examination should be scheduled. If the examiner is unable to offer any of the requested opinions, it is essential that he offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ S. S. TOTH 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).