Citation Nr: 21076109 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 15-13 079 DATE: December 22, 2021 REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection heart disability, to include mitral valve prolapse, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from September 1988 to November 1988. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in October 2017. A transcript of the hearing is of record. In May 2018, the Board remanded the matter for further evidentiary development. Upon return of the appeal, the Board, in a September 2020 decision, denied entitlement to service connection for a left ankle disability and service connection for a heart disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2021 Order, the Court granted a Joint Motion for Remand (JMR) vacating the September 2020 Board decision and remanding the matter. The case was returned to the Board in compliance with the JMR. As such, the issues are again before the Board. In August 2021 correspondence, the Veteran was informed that the VLJ who presided over the October 2017 hearing was no longer employed by the Board and was advised of the opportunity to testify at another hearing under 38 C.F.R. § 20.700. No response was received from the Veteran within 30 days of the letter, and so it is presumed that a new hearing is not desired. The August 2021 JMR noted that in the Board's May 2018 remand, Philadelphia VA Medical Center records were requested but were not associated with the claims file at the time of the September 2020 Board decision. It further noted that the Veteran identified private treatment records from Fitzgerald Mercy Hospital but were also not associated with the claims file nor were there documented efforts to obtain such records. The JMR highlighted that the Veteran also reported private treatment for her heart disability at the October 2017 Board hearing. The JMR further drew attention to the Board's May 2018 remand directives that indicated that the Veteran be scheduled for VA examinations for her claimed disabilities subsequent to the association of the requested treatment records. With regards to the October 2019 VA ankle examination, the JMR indicated that the VA examiner failed to address the Veteran's lay statements describing her current left ankle disability. Further development is required in connection with the claims of service connection for a left ankle disability and service connection for a heart disability. Upon review of the record, the Board notes that no post-service treatment records have been associated with the claims file. As referenced by the August 2021 JMR, the April 2013 VA examination report noted a possible history of congestive heart failure and prior hospitalization. The Veteran has also endorsed ongoing symptoms associated with her left ankle disability since her separation from active service. In light of the inadequacies of the October 2019 VA ankle examination highlighted by the August 2021 JMR and pursuant to VA's duty to assist, a remand is warranted for new VA examinations to determine the nature and etiology of the Veteran's claimed left ankle and heart disabilities. Private and VA treatment records should be requested on remand. The matters are REMANDED for the following action: 1. Contact the Veteran and request properly executed releases for any private care providers who have treated her for left ankle and heart disabilities. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. 2. After the above development has been completed, schedule the Veteran for a VA examination to ascertain the nature and etiology of the claimed left ankle disability; the claims folder must be reviewed in conjunction with the examination. The examiner must identify any current left ankle disabilities. For each diagnosed disability, the examiner must opine as to whether such is at least as likely as not (50 percent probability or greater) caused or aggravated by service. Competent lay statements regarding the disability must be addressed. A full and complete rationale is required for all opinions expressed. 3. After the above development has been completed, schedule the Veteran for a VA heart examination; the claims folder must be reviewed in conjunction with such. The examiner must identify any current heart disabilities. For each diagnosed disability, the examiner must opine as to whether such is at least as likely as not (50 percent probability or greater) caused or aggravated by service. The examiner must address all heart disabilities diagnosed during the pendency of the appeal. The examiner must address the following: (a.) For any diagnosed heart disability, does such constitute a congenital defect or a disease? Generally, the Board considers a congenital defect to be a structural or inherent abnormality which is more or less static in nature, and a congenital disease to be a condition capable of improving or deteriorating. (b.) If the examiner finds that any diagnosed heart disability is a congenital defect, is there an additional disability due to a disease or injury superimposed upon such defect during active service? (c.) If the examiner finds that any diagnosed heart disability is a congenital disease, was the disease aggravated (ie., a worsening of the underlying condition as compared to an increase in symptoms) by her military service beyond the natural progression? (d.) If any diagnosed heart disability is not congenital in nature, the examiner must state whether such is related to the Veteran's active service. Any appropriate evaluations, studies and testing deemed necessary by the examiner should be conducted, and their results included in the examination report. Competent lay statements regarding the disability must be addressed. A full and complete rationale is required for all opinions expressed. 4. Then, readjudicate the remanded issues. If the benefits sought remain denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.