Citation Nr: 1628994 Decision Date: 07/20/16 Archive Date: 08/01/16 DOCKET NO. 12-29 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from November 2007 to May 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The case was previously before the Board in October 2014 and October 2015 when it was remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In October 2014 the Board remanded the claim for the Veteran to be afforded a VA medical examination with regard to his claim for service connection for a right ankle disability. Thereafter, in February 2015 the Veteran was afforded a VA medical examination. The examiner noted that the Veteran was diagnosed with a right ankle sprain. Physical examination revealed the right ankle range of motion to be normal. However, instability or dislocation of the right ankle was suspected. The examiner noted that no service treatment data or x-rays were available for review. The problem list of the Veteran was noted to report a sprain of the ankle with date of diagnosis unknown. In a March 2015 addendum, the examiner rendered the opinion that the claimed right ankle condition was less likely as not (less than 50/50 probability) permanently aggravated by intraservice acute right ankle sprain. The rationale provided was that a March 2010 service treatment record revealed an ankle sprain. The examination indicated anterior/lateral tenderness to palpation, but no swelling or bruising or bony tenderness. Weight bearing was "well" with soft wrap brace. He was prescribed conservative management and did not appear to have an x-ray taken. He was given a walking profile with progression to return to full duty as tolerated. There were no other follow up notations on the condition found. The service separation Report of Medical Examination in December 2010 did not reveal any comment or notation about an ankle condition or injury. In October 2015 the Board determined that when the February 2015 VA medical examiner rendered his March 2015 addendum opinion, he did not address whether or not he had reviewed the x-rays he believed were unavailable when rendering his February 2015 opinion. Additionally, in the March 2015 addendum opinion, the examiner opined that it was less likely than not that the Veteran's right ankle was permanently aggravated by a right ankle sprain during service. However, the wrong standard was used in rendering this opinion. In an addendum dated in November 2015, the examiner rendered the opinion that the Veteran's acute right ankle sprain was as least as likely as not (50/50 probability) caused by or a result of intraservice events. However, the right ankle was less likely as not (less than 50/50 probability) permanently aggravated by the intraservice acute right ankle sprain. The rationale provided was that even "though my examination and opinion is detailed, the [B]oard does not accept that there is NOT enough [service treatment records] or post service date to support a decision for an ongoing chronic illness of the right ankle." The February 2015 x-rays were noted to have negative findings. The Board acknowledges that the examiner has indicated that that there is not enough evidence to support an ongoing chronic illness of the right ankle. However, after a February 2011 VA medical examination the Veteran was diagnosed with a recurrent right ankle strain and the examiner in February 2015 indicated that the Veteran had suspected instability or dislocation of the right ankle. These findings appear inconsistent with the finding that the Veteran does not have a chronic illness of the right ankle and they have not been adequately discussed by the examiners to date. On remand, the Veteran must be afforded a VA medical examination to determine whether the Veteran has a current disability of the right ankle that is at least as likely as not related to his active service, to include an ankle sprain in service and discussing the findings of the prior examinations of recurrent ankle sprain and suspected instability or dislocation. 38 C.F.R. § 3.159 (2015). The Veteran receives treatment from VA. The most recent VA treatment records associated with the claims file are dated in April 2014. On remand, attempt must be made to obtain and associate with the claims file complete VA treatment records regarding the Veteran. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA treatment records regarding the Veteran that are dated since April 2014. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 2. Following the receipt of any additional records, schedule the Veteran for an appropriate VA medical examination regarding the etiology of any right ankle disability found to be present. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the report that the claims file was reviewed. Following a review of the claims file and examination of the Veteran the reviewing examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any right ankle disability found to be present, at any point during the period on appeal, is related to his in-service right ankle sprain. In offering an opinion, the examiner must comment upon the findings of recurrent ankle strain and suspected instability or dislocation of the right ankle identified in prior examinations. The examiner should also discuss the rationale for the opinion, whether favorable or unfavorable, if necessary citing to specific evidence of the record. 3. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, issue the Veteran a supplemental statement of the case and provide the Veteran an opportunity to respond. 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). _________________________________________________ M. C. GRAHAM 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).