Citation Nr: 1806212 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 10-13 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a left ankle disorder. 2. Entitlement to service connection for a right ankle disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran had active military service from January 1971 to December 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In June 2016, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for the issuance of a Statement of the Case (SOC). A SOC was issued in June 2016, and the appeal has now been perfected and returned to the Board. The Board finds there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand). The Board acknowledges that the issues of entitlement to service connection for a prostate disorder and entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities have been perfected, but not yet certified to the Board. The Board's review of the claims file reveals that the AOJ is still taking action on these issues. As such, the Board will not accept jurisdiction over the issues at this time, but the issues will be the subject of a subsequent Board decision, if otherwise in order. This appeal was processed using the paperless, electronic Virtual VA and Veteran Benefits Management System (VBMS) claims processing systems. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets additional delay, a remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran's appeal, so as that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In the October 2017 Informal Hearing Presentation (IHP), the Veteran's representative argued that the Veteran's bilateral ankle disorders are secondary to his service-connected bilateral metatarsalgia with plantar fasciitis. This theory of entitlement has not been addressed by the AOJ. Thus, the Veteran has not been afforded a duty-to-assist notice letter addressing secondary service connection or a VA examination addressing this theory or a direct theory of entitlement. In this regard, his October 1974 military exit examination documents swollen or painful joints associated with his feet. A VA treatment record dated in February 2015 documents pain in the ankle. Based on the evidence suggesting a current diagnosis and an in-service incurrence, a remand is warranted for the issuance of a VCAA notice letter and for a VA examination and medical opinion to be obtained. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Finally, in June 2015, the AOJ last associated with the Veteran's claims file records of his VA treatment. On remand, efforts should be made to obtain records of any relevant VA treatment he may have undergone since that time, in order to ensure that his claims are adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Accordingly, the case is REMANDED for the following actions: 1. Send a VCAA notice letter to the Veteran and his representative notifying them of the information and evidence necessary to substantiate the appeal on a theory of secondary service connection. 2. Obtain copies of records pertaining to any relevant treatment the Veteran has received since June 2015, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA joints examination to determine the nature and etiology of his claimed bilateral ankle disorder. The entire claims file, to include a complete copy of the REMAND and printed paper copies of all evidence relevant to the examiner's review (if the examiner does not have access to the Veteran's electronic (Virtual VA) file), must be made available to the physician designated to examine the appellant, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies, to include X-rays, should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner is asked to address the following: a) Identify all current disability(ies) of the ankles. b) With respect to each such diagnosed ankle disability, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is the result of disease or injury incurred in or aggravated by service. c) With respect to each such diagnosed ankle disability, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the current ankle disability was caused by or results from the Veteran's service-connected bilateral metatarsalgia with plantar fasciitis. d) With respect to each such diagnosed ankle disability, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the current ankle disability has permanently progressed at an abnormally high rate due to or as the result of the Veteran's service-connected bilateral metatarsalgia with plantar fasciitis. In forming his or her medical opinions, the examiner is asked to consider the October 1974 military exit examination, which documents swollen or painful joints associated with the Veteran's feet. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The medical professional should discuss the particulars of this Veteran's medical history and the relevant medical sciences that apply to this case, which may reasonably make clear the medical guidance in the study of this case. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a Supplemental SOC (SSOC). An appropriate period of time should be allowed for response. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).