Citation Nr: 1751292 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-30 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a right lower extremity disorder, to include residuals of a right leg fracture, a right ankle disorder, and as secondary to a service-connected left ankle disability. 2. Entitlement to an initial compensable evaluation for headaches, residuals of a traumatic brain injury (TBI). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Hendricks, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1985 to January 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2010 and April 2010 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in March 2017. The issue of entitlement to service connection for a left leg condition has been raised by the record in an October 2013 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND In the Veteran's July 2009 claim, she contended that she broke her right leg in four places in March 1987 while in service. Alternatively, the Veteran testified at the March 2017 Board hearing that she actually sustained a right ankle fracture in service, and that this caused the pain and instability in her right leg. The service treatment records currently associated with the claims file show the Veteran sustained a left ankle fracture during service. Additionally, they show that in November 1985, the Veteran complained of right leg and knee pain. Further, they show that in November 1988, the Veteran again complained of right leg pain, and the physician noted the Veteran had broken her leg a year prior. There is currently no evidence of a right ankle fracture in the Veteran's service treatment records; however, a November 2011 VA treatment note stated the Veteran presented to the clinic for a follow-up of right ankle pain from a previous fracture she had sustained in service. Based on the above, it is currently unclear whether the Veteran sustained a right leg fracture or a right ankle fracture in service, or whether she sustained both. However, it appears there are still outstanding treatment records regarding the Veteran's right leg or right ankle injuries during service. The Veteran reported that following a March 1987 car accident in Germany, she was examined and treated at the Westside VA Hospital, as well as at the Cook County Hospital in Illinois. However, the claims file currently does not contain any treatment records from Cook County Hospital prior to 2003, nor does it contain any treatment records from the Westside VA Hospital. Therefore, it appears there are outstanding treatment records, and a remand is necessary in order to obtain those records and any other outstanding VA treatment records. Further, the VA treatment notes show that the Veteran has current diagnoses of right ankle joint osteoarthritis, right posterior tibial tendonitis and, a right foot chronic ankle sprain. Thus, taken in conjunction with the above evidence noted during the Veteran's service, the Board finds that the low threshold for obtaining a VA examination and medical opinion have been met in this case; a remand for such an examination to be accomplished is necessary at this time. See 38 U.S.C.A. § 5103A (d) (West 2014); see also McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). As for the Veteran's increased evaluation claims, the Veteran's last TBI examination was in March 2010. At her March 2017 Board hearing, the Veteran indicated this disability may have worsened. Thus, the Board finds a remand is necessary to afford the Veteran new VA examinations such that the Board may adequately assess the current severity of her headaches as a residual of a TBI. Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all VA treatment records from the Westside and Jesse Brown VA Medical Centers, to include any records from the Westside VA Hospital beginning in 1987, or any other VA medical facility that may have treated the Veteran, and associate those documents with the claims file. 2. After obtaining the necessary releases, attempt to obtain any outstanding treatment records from the Cook County Hospital in Springfield, Illinois, and associate the records with the claims file. 3. Schedule the Veteran for a VA examination in order to determine whether any of the Veteran's disorders of her right lower extremity are related to service. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. After examination of the Veteran and review of the claims file, the examiner should identify any right lower extremity disorders found to have existed at any time during the course of the appeal, to include right ankle joint osteoarthritis, right posterior tibial tendonitis and, a right foot chronic ankle sprain. The examiner should then opine as to whether any of the Veteran's right lower extremity disorders at least as likely as not (50 percent or greater probability) began in or are otherwise related to her military service. If any newly obtained service treatment records show a right ankle injury in service, the examiner should then opine whether any current right lower extremity disorder is at least as likely as not related to the right ankle injury in service. Lastly, the examiner should opine whether any right lower extremity disorders are at least as likely as not (a) caused by; or (b) aggravated (i.e. worsened beyond the normal progression of that disease) by the Veteran's service-connected left ankle disability. If aggravation of any right lower extremity disorder by the left ankle disability is found, the examiner must attempt to establish a baseline of severity of her right lower extremity disorder prior to aggravation by the service-connected left ankle disability. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. 4. Schedule the Veteran for a traumatic brain injury (TBI) examination by an appropriate medical professional to assess the current severity of her headaches that are a residual of her TBI. The claims folder must be available to and be reviewed by the examiner in conjunction with the examination. 5. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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). 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. HYLAND 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).