Citation Nr: 1750183 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 12-17 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for left ankle arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Samuelson, Associate Counsel INTRODUCTION The Veteran served on active duty in the Air Force from July 1961 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision by the Reno, Nevada Department of Veterans Affairs (VA) Regional Office (RO). In August 2012, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). This issue was previously before the Board in October 2014 and 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 The Veteran has been diagnosed with left ankle traumatic and degenerative arthritis and arthritis due to Lyme disease and gout. See March 2012 VA examination, p. 11; February 2015 VA examination, p. 2. The Veteran contends that he injured his left ankle during an incident in service in which boxes fell on his leg causing injury to his back and leg. See August 2012 hearing transcript, p. 3. The Veteran further contends that his left ankle arthritis may be related to his service-connected right ankle disability and/or his service-connected back disability. See August 2012 hearing transcript, pp. 9 and 13. Pursuant to the October 2014 Board remand directives, a VA examination was conducted in February 2015 to determine whether the Veteran's left ankle arthritis is related to service or secondary to his service-connected right ankle traumatic arthritis, recurrent lumbosacral strain, and/or the aggregate impact of his service-connected disabilities. The February 2015 VA examiner provided a negative nexus opinion. The Board finds that the examiner did not provide sufficient rationale for his opinion. Specifically, in response to whether the Veteran's condition is at least as likely as not aggravated beyond its natural progression by a service-connected condition, the examiner's rationale was that development of the disease was post military. This does not address the question of whether the left ankle condition was aggravated by a service-connected condition. The examiner's rationale regarding why the Veteran's left ankle condition was not proximately due to or a result of the Veteran's service-connected conditions was that the Veteran experienced other causes for arthritis since service, mainly Lyme disease and Gout as well as gradual deterioration of aging including pes planus and calcium deposits. However, the Veteran contends that he never had a diagnosis of Lyme disease. He contends that he never had a tick bite and he submits a July 1, 2011 laboratory results that is negative for Lyme disease. The Veteran contends that once diagnosed with Lyme disease it is almost always for an entire lifetime. See March 2017 Appellant's Brief; December 2011 notice of disagreement. Further, it appears there may be missing private treatment records. In an authorization form received in June 2010, the Veteran reports treatment at Sunrise Hospital at 3186 S. Maryland Parkway, Las Vegas Nevada 89109 in 1998 and 1999; Shore Memorial Hospital at 10098 Rogers Drive, Nassawadox, Virginia 23413 in 2005, 2009, and "other years"; and Sentara Hospital at 600 Gresham Drive in Norfolk Virginia 23507 in 2007. The claims file contains records from Shore Memorial Hospital from September 11, 2008 to September 22, 2008 only; there are no additional records of treatment from Shore Memorial Hospital and no request for these records. The claims file contains no treatment records or request for treatment records from Sunrise Hospital or Sentara Hospital. These records, along with any additional, pertinent VA or private treatment records should be obtained and associated with the claims file. The RO should also ask the Veteran to submit any additional, pertinent lay statements relating to his claim. Accordingly, the case is REMANDED for the following action: 1. Request all treatment records from Sunrise Hospital at 3186 S. Maryland Parkway, Las Vegas Nevada 89109; Shore Memorial Hospital at 10098 Rogers Drive, Nassawadox, Virginia 23413; and Sentara Hospital at 600 Gresham Drive in Norfolk, Virginia 23507. The AOJ must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. The Veteran should be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Request that the Veteran identify any additional outstanding VA or private treatment records pertaining to his claim. Take appropriate measures to obtain copies of any outstanding records of pertinent VA or private medical treatment the Veteran identifies. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service left ankle symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Afford the Veteran an appropriate VA examination. After conducting any necessary testing and taking into account the history of the Veteran's disability, the examiner must opine as to: a. whether it is at least as likely as not that the Veteran's left ankle arthritis is etiologically related to or had its onset in service. b. whether it is at least as likely as not that the Veteran's left ankle arthritis was caused or aggravated (chronically worsened) by his service-connected right ankle traumatic arthritis. c. whether it is at least as likely as not that the Veteran's left ankle arthritis was caused or aggravated (chronically worsened) by his service-connected recurrent lumbosacral strain. d. whether it is at least as likely as not that the Veteran's left ankle arthritis was caused or aggravated (chronically worsened) by the aggregate impact of his service-connected disabilities. Please note that the examiner must answer both the causation and the aggravation portions of the question or the response will be deemed inadequate. A complete rationale must be provided for all opinions. If any opinion cannot be provided without resort to speculation, the examiner must so state and then provide a rationale for why the requested opinion could not be provided without resort to speculation. 5. Then readjudicate the appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. A reasonable period of time should be allowed for response before the appeal is returned to the Board. 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). 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). _________________________________________________ STEVEN D. REISS 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) (2016).