Citation Nr: 1634870 Decision Date: 09/06/16 Archive Date: 09/09/16 DOCKET NO. 03-14 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for a right ankle disorder. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1967 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. In February 2007, the Board, in pertinent part, determined that new and material evidence had been received to reopen the claims of entitlement to service connection for residuals of a right wrist injury and right ankle disorder, but denied both claims on the merits. The Veteran appealed the Board's February 2007 decision to the United States Court of Appeals for Veterans Claims (Court). In April 2008, the Court granted a Joint Motion for Remand (Joint Motion), vacating the portions of the Board's decision that denied entitlement to service connection for residuals of a right wrist injury and a right ankle disorder, and remanding those claims for compliance with the terms of the Joint Motion. In November 2009, the Board remanded the appeal for further development. In May 2014, the RO granted the claim for service connection for residuals of a right wrist injury. As such, the claim was removed from appellate status. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). In December 2014, the Board denied service connection for a right ankle disorder. The Veteran again appealed the Board's decision to the Court. In February 2016, the Court vacated the December 2014 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As explained in the February 2016 Joint Motion, the Board's December 2014 decision was vacated due to its reliance on an August 2010 VA examination report. The VA examination was found inadequate because the examiner provided a speculative opinion, provided a conclusory rationale rather than a reasoned medical explanation, and did not address a February 2006 buddy statement when determining that there was no documentation that the initial trauma was significant enough to result in the current condition. The Board too did not discuss the February 2006 buddy statement in the decision. Further, the Board's decision was vacated due to its failure to consider all reasonably raised theories of recovery, specifically, that the Veteran's post-service accident aggravated his in-service injury. Following the Joint Motion, the Veteran's attorney submitted a brief in June 2016 requesting VA to obtain additional records, particularly in view of its heightened duty to provide reasons and bases for its findings and conclusions in the absence of all of the Veteran's service records. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Specifically, the attorney requested that Army Morning Reports be obtained as the RO failed to do so previously despite prior requests from the Veteran. The attorney also requested that records from the Henry Kaserne Medical Dispensary and the Warner Kaserne Medical Dispensary in Munich, Germany from December 1966 to January 1967 be requested, as the RO's prior requests in this regard pertained to the wrong location and time frame. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC) and/or any other appropriate sources and attempt to secure morning reports for the Veteran's unit from the time frame in which he his ankle was injured, approximately December 1966 to February 1967. 2. Attempt to obtain medical records pertaining to the Veteran from the Henry Kaserne Medical Dispensary, AND the Warner Kaserne Medical Dispensary, in Munich, Germany from December 1966 to February 1967. 3. Afford the Veteran a VA examination to obtain an opinion as to the etiology of his right ankle disorder. The claims folder/e-folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place must be included in the report of the examiner. After an interview of the Veteran, a physical examination, and all tests and studies required, the VA examiner must provide an opinion as to whether his current right ankle disorder was at least as likely as not incurred in or related to service. In doing so, the examiner must address and discuss the February 2006 buddy statement of R.T., a medic who served with the Veteran and has personal knowledge of his right ankle injury. A reasoned, medical explanation, and not a conclusory rationale, for all opinions expressed must be provided. 4. Thereafter, readjudicate the claim, considering all evidence, and specifically addressing the Veteran's argument that his post-service injury aggravated his in-service injury. If the benefit sought remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for a response. 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). _________________________________________________ M. TENNER 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).