Citation Nr: 1800161 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 11-19 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a right foot disability. REPRESENTATION Veteran represented by: James Guin, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1972 to June 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from November 2008 and September 2009 rating decisions of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran applied for compensation for a right knee disability in September 2007. In January 2016, he was granted service connection at an evaluation of 10 percent effective September 2007 for his right knee disability. The Veteran and his representative were notified of this decision and have not expressed dissatisfaction with the rating assigned or the effective date of service connection. As such, that issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating a veteran had to separately appeal these "downstream" issues regarding the ratings and effective dates assigned once this disability was granted service connection). The Veteran appeared at a hearing before a Veterans Law Judge (VLJ) in April 2014. A transcript of that hearing has been associated with the Veteran's claim file. Subsequently, in a May 2017 letter, the Veteran was informed that the VLJ who held his hearing was no longer at the Board. The Veteran had a subsequent video conference hearing in September 2017 with the undersigned VLJ. In that hearing, all the issues on appeal were addressed and a transcript of that hearing has been associated with the claims file. In September 2014 the Board remanded the claims to obtain private and VA treatment records as well as VA examinations. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claim. See 38 C.F.R. § 3.159. Specifically, the previous right ankle and foot examinations are inadequate and new examinations are required. In June 2016, the Veteran underwent right foot, ankle, and knee examinations. In the right foot and ankle examinations, the examiner found that while the Veteran suffered from degenerative arthritis, his disabilities were less likely than not caused by or related to events in service because service treatment records (STRs) were silent for any right foot or ankle abnormalities and because the record was silent for any right foot or ankle disabilities within a year of separation from service. Concurrently however, the examiner found that the Veteran's right knee condition was at least as likely as not caused by events in service, noting that STRs documented several knee injuries during the Veteran's active service. The record does, however, show that the Veteran suffered right foot and ankle symptoms during service. STRs dated November 1973 show that his right heel was injured. In February 1973, STRs show that he suffered a fall and had painful right leg symptoms. The record shows that the Veteran was in a right leg cast for several months and used crutches. A new VA examination will need to consider these entries and whether or not they are related to his current right foot and ankle disabilities. Additionally, the examiner failed to consider the Veteran's competent and credible testimony regarding his right leg accident in service and his subsequent right foot and ankle symptoms he experienced. The Veteran testified that when he injured his right leg after a fall in service, he injured his right knee, foot, and ankle. He reported that he could not "put on a shoe" after his right leg accident because his ankle was swollen. He stated that his right ankle and foot continued to have pain after the accident. The Veteran also reported that he underwent a foot surgery in 1974 within a year of leaving service. While those VA records are unable to be obtained, the Board finds the Veteran credible that he did have a surgery on his foot within a year of service. The examiner must consider this and subsequent surgeries after service as evidence that his injury in service possibly continued after service and relates to his current disabilities. Further, the Veteran has reported that all of his knee, ankle, and foot pain have occurred together. It is therefore possible that his service-connected right knee condition could have caused or aggravated his right ankle or foot disabilities. Finally, it appears the Veteran continues to receive treatment at the VA for his disability. The AOJ should ensure that all VA treatment records are updated to this time. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain for the claims file copies of the complete clinical records of all VA treatment the Veteran has received regarding his right leg disabilities (i.e., ensure his records of VA treatment are updated to the present time). 2. Thereafter, the AOJ should arrange for an appropriate examination to ascertain the nature and likely cause of the Veteran's right foot and ankle disability. The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. Range of motion studies should include active and passive motion and weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The examiner should note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors. The Veteran's entire record, including this remand, must be reviewed by the examiner in conjunction with the examination, and all indicated tests and studies must be completed. Based on this review of the record and the examination and interview of the Veteran, the examiner should provide opinions that respond to the following: a) Please identify the likely cause for each diagnosed right ankle and foot disability. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred in, related to, or caused by the 1973 fall in service or any other incident during the Veteran's military service? The Board notes that the Veteran has reported that his foot and ankle continued to hurt after his accident in service and that he subsequently had several surgeries to address his foot and ankle disabilities. b) Please state whether or not the Veteran's service-connected right knee disability caused or aggravated his right foot and ankle disabilities. Specifically, is it at least as likely as not (a 50% or better probability) that his right foot and ankle disabilities are aggravated or caused by his right knee disability. c) The examiner should provide a complete rationale in support of any opinions offered. If the examiner is unable to provide any requested opinion, he or she must explain why such an opinion would be speculative. 3. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). After undertaking the above actions and any other necessary development, the AOJ should then review the record and readjudicate the claim. If the claim remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the record to the Board. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ VICTORIA MOSHIASHWILI 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).