Citation Nr: 21007566 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-08 239 DATE: February 10, 2021 REMANDED Entitlement to service connection for an ankle disorder, claimed as a left ankle disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1996 to February 2002. This matter comes before the Board from rating decisions of the Department of Veterans Affairs Regional Office (RO). In a July 2015 rating, the RO denied service connection for a left shoulder disorder and determined that new and material evidence had not been received to reopen a previously denied claim of service connection for a left ankle disorder. After the Veteran submitted new evidence for consideration in July 2015 and August 2015, the RO reconsidered these claims in a September 2015 rating decision, which continued to deny the claims. The Veteran filed a notice of disagreement (NOD) in April 2016, a statement of the case was issued in January 2017 and a substantive appeal was received in February 2017. He testified before the undersigned at a hearing held in September 2020. Regarding the left ankle, the Board notes that by November 2006 rating decision, the RO initially denied service connection. The Veteran was notified of this RO rating decision, but did not appeal. The left ankle claim was again denied in a February 2009 rating decision confirming and continuing the prior denial. He was again notified of this decision but did not appeal and that decision was the last final disallowance of the claim. At the time of the final February 2009 RO rating decision, there were some service treatment records (STRs) associated with the claims file dated through a March 2000 separation examination but did not include the most recent active service ending in February 2002. In September 2020, following his hearing, the Veteran submitted copies of STRs from the latter period of service after March 2000 that had not been of record at the time of the February 2009 rating decision. Significantly, these STRs revealed additional in-service treatment and notations relevant to the left ankle and shoulder disorders on appeal. Governing regulation provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section, which concerns the need to have new and material evidence to reopen the claim under normal circumstances. See 38 C.F.R. § 3.156 (c). As these additional STRs are “relevant” to the issue on appeal, the claims must be reconsidered, on a de novo basis, without the need to address whether there is new and material evidence to reopen the claims. Id. 1. Left ankle disorder is remanded. On review of the record, the Board finds that further development including medical examination and opinion is warranted. First, the evidence includes copies of service treatment records (STRs) including from the period of service from July1996 to March 2000 obtained from VA, and more recently nine pages of STRS from after March 2000 submitted by the Veteran. However, it appears that the more recent records may be incomplete and do not include entrance or separation examinations or reports of medical history after March 2000. An effort must be made to ensure the complete STRs from his periods of service after March 2000 and prior to February 2002 are associated with the claims file. If not, this places upon VA a heightened duty to assist the claimant in developing the claims. This includes ensuring the Veteran receives adequate notice of the alternate documents that might substitute for missing STRs, and this must be remedied prior to final appellate review. See VBA Adjudication Manual M21-1.III.iii.2.E.2.b. Furthermore, the Board cannot make a fully-informed decision on the issue of service connection for a left ankle disorder because no VA examiner has opined whether the Veteran has a current left ankle disorder that was incurred in service, to include consideration of the Veteran’s lay testimony at his September 2020. At that time he alleged injuring the ankle during PT in 1999 when he “rolled” it and continued with symptoms thereafter, describing his ongoing use of high ankle footwear for ankle support. Transcript pg. 3-7. Moreover, additional STRs submitted by the Veteran in September 2020 show issues with left ankle pain in November and December 2000 following an altercation. . Accordingly the Board finds that an examination should be obtained that addresses the etiology of the Veteran’s left ankle disorder with consideration of the complete lay and medical evidence. 2. Left Shoulder disorder is remanded. On review of the record, the Board finds that further development, including medical examination and opinion, is warranted. As discussed above regarding the left ankle disorder, an effort must be made to ensure the complete STRs from his periods of service after March 2000 and prior to February 2002 are associated with the claims file. Additionally, in light of the evidence recently received from the Veteran following his September 2020 hearing, additional clarification appears necessary regarding which shoulder he is actually claiming service connection for. Although the left shoulder has been claimed by the Veteran and adjudicated by the RO, the Veteran in his September 2020 hearing alleged a shoulder injury while working on a helicopter and described falling and hanging for a while after a ladder slipped. He indicated some confusion about which arm he was hanging from, at first thinking it was the right arm, then possibly the left. He described this as the initial injury to his shoulder and then described sustaining a torn rotator cuff. Transcript 7-10. The Board notes that the nine pages of STRs after March 2000 which he submitted in September 2020, show treatment for a right shoulder rotator cuff strain on August 14, 2001, with an undated record presumably from the same period shows a diagnosed right rotator cuff strain versus partial tear. Accordingly, the Board finds that an examination should be obtained that addresses the etiology of the Veteran’s claimed shoulder disorder(s) with consideration of the complete lay and medical evidence. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service treatment records for any service period from March 2000 to February 2002. 2. Contact the Veteran and his representative to clarify whether he is claiming service connection for a disorder of the right shoulder instead of, or in addition to, the left shoulder that is currently on appeal. 3. Following completion of the above, schedule the Veteran for a VA examination for his claimed disability of the left ankle, left shoulder and/or right shoulder. The examiner must review the claims file. The examiner is asked to provide a response to the following: The examiner must opine whether it is at least as likely as not that any disability of the left ankle is related to an in-service injury, event, or disease, including the left ankle injury shown in the November and December 2000 STRs and the lay evidence of the injury described by the Veteran in his September 2020 hearing. Additionally, the examiner must opine whether it is at least as likely as not that any disability of either shoulder is related to an in-service injury, event, or disease, including the lay evidence of the claimed injury described by the Veteran in his September 2020 hearing and medical evidence of the right shoulder rotator cuff injury shown in the August 2001 STRs. All opinions must be accompanied by adequate rationale. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carol Eckart 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.