Citation Nr: 1751370 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 14-05 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for residuals of a broken right ankle. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In May 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND The Veteran is seeking service connection for the residuals of a broken right ankle. Specifically, he contends that he has suffered from pain, swelling, and flare-ups since injuring his right ankle on active duty service. Based on a review of the claims folder, the Board finds that additional development is needed prior to adjudication of the claim. In his May 2017 Board hearing, the Veteran testified that he had broken his right ankle during training exercises at Camp Pendleton. He was taken to the infirmary and a cast was placed on his right ankle. The Veteran testified that he was surprised his injury wasn't documented in his service treatment records, as he also had to return to the infirmary shortly after because the cast was put on incorrectly. He wore his cast approximately six to eight weeks. In June 2017, the Veteran's wife submitted a statement corroborating that the Veteran had broken his ankle in service, had a cast placed on his ankle by the infirmary at Camp Pendleton, and had to return to the infirmary because the ankle was not set properly in the cast. The Board notes that the Veteran is service-connected for scars, status post-knife wound to the back, which he incurred while on active duty service. Although the Veteran's service treatment records fail to note treatment for a knife wound, the Veteran's January 1969 Report of Medical Examination upon separation of service documents scars on the Veteran's middle back, lower spine, and right side posterior that were not present during his enlistment examination in 1965. Given the absence of documentation regarding the Veteran's broken ankle and knife wound to the back, the Board finds that there is a strong indication that service treatment records are missing from the Veteran's electronic claims file. Therefore, on remand, service treatment records for the Veteran, from 1965 to 1969, should be requested from the hospital located at Camp Pendleton, the National Personnel Records Center (NPRC) in St. Louis, Missouri, and any other appropriate facility. Next, VA treatment records include diagnoses of arthralgia, arthritis, and osteoarthritis in multiple joints; however, there is no specific diagnosis of an ankle disability. The Board acknowledges that the Veteran has never been afforded a VA examination for his claimed-right ankle disability. VA has a duty to provide an examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As there is evidence of an in-service injury and evidence of current diagnoses of arthralgia, arthritis, and osteoarthritis that could be relevant to the Veteran's right ankle, the Board has determined that pursuant to McLendon, a remand for a VA examination and opinion is warranted. Accordingly, the case is REMANDED for the following action: 1. The AOJ should attempt to obtain the Veteran's treatment records from the hospital located at Camp Pendleton, from 1965 to 1969, from official sources, to include the NPRC as well as direct requests to the specific medical facility or service department. If the records were not available, then this should be documented for the record, and the Veteran should be so advised. 38 C.F.R. §§ 3.159(c) and (e). 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current right ankle disabilities. All necessary studies should be performed, and the electronic claims folder shall be made available for the examiner for review prior to the examination. The Veteran's lay history of symptomatology should also be recorded and considered. a) The examiner should identify, by diagnosis, each current disability of the right ankle, if any. b) The etiology of each diagnosis should be identified and the examiner should opine, for each diagnosis, whether it is at least as likely as not (i.e., a 50 percent or greater probability) caused by, or otherwise related to the Veteran's active duty service. A complete rationale for any opinion offered should be provided. The examiner should address the lay statements of record asserting that the Veteran broke his right ankle in service. 3. After completing the above, the RO should readjudicate the Veteran's claim based on the entirety of the evidence. If the benefit sought remains denied, the RO should furnish the Veteran and his representative a Supplemental Statement of the Case (SSOC) and return the case to the Board. The Veteran and his representative have 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). _________________________________________________ G. A. WASIK 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) (2017).