Citation Nr: 1641782 Decision Date: 10/28/16 Archive Date: 11/08/16 DOCKET NO. 12-28 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a right ankle disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a foot disability (claimed as swollen foot). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1990 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video conference hearing in July 2016. A transcript of that hearing is of record. In August 2016, the Veteran appealed a December 2015 rating decision, in particular, its denial of service connection for a left shoulder disability. That same month, VA sent a letter to the Veteran acknowledging receipt of his notice of disagreement and explaining the decision review process. In view that the RO has taken action as to this appeal, a remand for a statement of the case is not necessary as to this issue. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is claiming service connection for several disabilities of the lower extremities. He believes that his claimed disabilities are related to events in military service. His DD 214 reflects that he served as a fighting vehicle infantryman, with service in South West Asia from October 1992 to December 1992. The Veteran has stated that, during air travel to Kuwait, his left ankle swelled up. See July 2016 Board hearing transcript at 4. He mentioned that he received some shots prior to departing for the Middle East. Id. Once in Kuwait, he was taken to a facility, where he was under medical observation and treatment (medication, elevated foot) for three weeks. Id.; see also March 2012 notice of disagreement. The Veteran concedes that there are no records available of this treatment. He has suggested that treatment records might have not been kept, as the treatment occurred at a time when everybody was getting organized. See March 2012 notice of disagreement. The Veteran got better and was released to his unit. See July 2016 Board hearing transcript at 5. He explained that, as an infantryman, he would have to walk long distances and as jump up and down Bradley Fighting Vehicles, with a lot of weight on his shoulders. Consequently, his ankles worsened. Id. In a November 2014 statement, a fellow service member stated that he and the Veteran were stationed together in Fort Hood. He recalled that the Veteran told him about the swollen ankle in Kuwait. He stated that, having returned from Kuwait, the Veteran continued to have ankle and knee symptoms, with frequent flare-ups. The Veteran, through his representative, contends that he is entitled to the combat presumption. See July 2016 Board hearing transcript at 9. The Board agrees. Pursuant to 38 U.S.C.A. § 1154 (b), for any Veteran who engaged in combat with the enemy, VA shall accept lay or other evidence as proof of a disease or injury being incurred or aggravated by such service, even if there is no official record of such incurrence, so long as the evidence is consistent with the circumstances of such service. See 38 C.F.R. § 3.304(d). As stated above, the Veteran served as an infantryman in South West Asia. He has reported that his left ankle swelled up during air travel to Kuwait, that he was treated for three weeks, and that his ankles worsened as a result of walking long distances and jumping up and down Bradley Fighting Vehicles with a lot of weight on his shoulders. Such reports are consistent with the circumstances of the Veteran's service as an infantryman in South West Asia. Consequently, the Board finds that he is entitled to the combat presumption with regards to his report of an injury in service. 38 C.F.R. § 1154(b). December 2011 VA treatment records show complaints of, and treatment for, bilateral ankle and knee pain, which was noted to have started in Kuwait. See, CAPRI records received February 25, 2012, at 14, 20, and 23 (in Virtual VA). These treatment records reflect diagnoses of a remote injury of the bilateral ankle with no acute injury or fracture, and degenerative joint disease of the knee. In view of the above, the Board finds that a VA examination is warranted. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran has reported that he developed ankle symptoms in service and the Board has accepted such report as credible. In addition, he has reported that his ankles worsened as a result of walking long distances and jumping up and down Bradley Fighting Vehicles with a lot of weight on his shoulders. Such reports, which the Board finds credible, suggest a possible link between the claimed disabilities and service. Therefore, VA should provide an examination. At his July 2016 Board hearing, the Veteran reported a six-year history of VA treatment for his knees and ankles. See July 2016 Board hearing transcript at 7. Further, he stated that VA had recently assigned him a new VA provider and he was scheduled to have his first appointment with the new provider the following month. It is thus likely that there are now relevant outstanding VA treatment records. VA treatment records were last associated with the claims file in December 2015 and May 2016. Such records, however, were obtained in the context of different claims. Prior to that, VA treatment records were obtained in February 2012. See CAPRI records received February 25, 2012 (in Virtual VA). In view of this, it is unclear whether all relevant VA treatment records (i.e., relevant to the specific issues on appeal) have in fact been associated with the claims file. On remand, VA should make sure that all relevant VA treatment records have been obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Thereafter, schedule the Veteran for VA examinations to determine the nature and etiology of his claimed disabilities of the lower extremities. Review of the claims file should be noted in the examiner's report. The examiner should respond to the following: (a) Identify any current disabilities of the lower extremities (feet, ankle, and knees). Please consider VA treatment records that show complaints of, and treatment for, bilateral ankle and knee symptoms. (b) For any current disability of the lower extremities, is it at least as likely as not (probability of 50 percent or more) related to an event, disease, or injury in service? For the purposes of this opinion, please accept as credible the Veteran's report that his left ankle swelled up during air travel to Kuwait, requiring a three week period of observation and treatment. Please also consider the Veteran's contention that his claimed disabilities are the result of walking long distances and jumping up and down Bradley Fighting Vehicles with a lot of weight (military gear) on his shoulders, and note that the Veteran reported a history of ankle symptoms since service during December 2011 VA treatment. The examiner is to provide a comprehensive rationale for any opinion offered. The examiner must consider lay reports from the Veteran along with pertinent medical evidence, including medical literature submitted by him. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. 3. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). All claims remanded for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Paul Sorisio 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).