On appeal from the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland
THE ISSUE
Entitlement to service connection for bilateral ankle
disability.
REPRESENTATION
Appellant represented by: Kathy A. Lieberman, Attorney-at-Law
ATTORNEY FOR THE BOARD
J. Barone, Associate Counsel
INTRODUCTION
The appellant had active duty for training from October 5,
1979, to October 22, 1979.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a July 1999 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Baltimore,
Maryland.
The Board denied the appellant's claim in August 2001. The
appellant appealed the Board's decision, and in December 2002
the United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999, hereinafter Court) granted a joint motion to remand
the case and vacated the Board's August 2001 decision.
REMAND
During the pendency of the appellant's claim, the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000), was signed into law and codified at 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002). In addition, regulations implementing the VCAA were
published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001)
and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326
(2002). The liberalizing provisions of the VCAA and the
implementing regulations are applicable to the appellant's
claim.
The Act and implementing regulations essentially eliminate
the requirement that a claimant submit evidence of a well-
grounded claim, and provide that VA will assist a claimant in
obtaining evidence necessary to substantiate a claim but is
not required to provide assistance to a claimant if there is
no reasonable possibility that such assistance would aid in
substantiating the claim. They also require VA to notify the
claimant and the claimant's representative, if any, of any
information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate
the claim. As part of the notice, VA is to specifically
inform the claimant and the claimant's representative, if
any, of which portion, if any, of the evidence is to be
provided by the claimant and which part, if any, VA will
attempt to obtain on behalf of the claimant.
The appellant contends that VA did not fulfill its duty to
assist her in developing her claim. Specifically, she has
indicated through her attorney that although she identified
various sources of treatment for her bilateral ankle
disability, VA did not attempt to obtain records from two
identified sources. The record reveals that the appellant
identified Dr. Noel Barnett and the University of Maryland
Hospital as sources of treatment for her claimed disability.
However, there is no evidence that the RO made an attempt to
obtain such records.
The Board also notes that in May 2003 the appellant's
attorney submitted an opinion from Craig N. Bash, M.D.,
regarding the etiology of the appellant's bilateral ankle
disability. While Dr. Bash's report indicates that he
reviewed various medical records in reaching his opinion, it
is not clear that this opinion was based on a review of all
pertinent records. In particular, the outstanding records
referenced above presumably were not reviewed by Dr. Bash.
Fulfillment of the statutory duty to assist includes the
conduct of a thorough and contemporaneous medical
examination, one which takes into account the records of
prior medical treatment, so that the evaluation of the
claimed disability will be a fully informed one. Green v.
Derwinski, 1 Vet. App. 121 (1991). Thus, the appellant
should be afforded a current VA examination, and the claims
folder should be made available to the examining physician in
conjunction with the examination.
In light of these circumstances, the case is REMANDED to the
RO for the following:
1. The RO should issue the appellant a
VCAA notice letter with regard to her
claim of entitlement to service
connection for bilateral ankle
disability. The information requested of
the appellant should include identifying
information regarding claimed treatment
for her bilateral ankle disability at the
University of Maryland Hospital, to
include the dates of treatment and names
of treatment providers. The RO must also
inform the appellant that any evidence
and information submitted or identified
in response to the letter must be
received by the RO within one year of the
date of the RO's VCAA notice letter.
2. When the requested information and
any necessary authorization have been
received, the RO should attempt to obtain
all pertinent records from the University
of Maryland Hospital, and from Noel
Barnett, PTM, Executive Park West, 3100
Timanus Lane, Suite 108, Baltimore, MD
21244, as well as any other pertinent
records identified but not provided by
the appellant.
3. If the RO is unsuccessful in
obtaining any records identified by the
appellant, it should so inform the
appellant and her representative, and
request them to provide a copy of such
records.
4. Upon completion of the above-directed
development, the RO should arrange for
the appellant to undergo a VA orthopedic
examination to determine the nature,
extent and etiology of the appellant's
claimed bilateral ankle disability. The
appellant should be properly notified of
the date, time, and place of the
examination in writing. The appellant's
claims file, including a copy of this
REMAND, must be made available to and
reviewed by the examiner. The
examination report is to reflect that a
review of the claims file was made.
A complete history pertaining to the
appellant's claimed bilateral ankle
disability should be elicited. The
examiner should identify all currently
existing disorders of the appellant's
ankles.
Based on the review of the claims folder,
to include the May 2003 statement from
Dr. Craig N. Bash, and the examination
results, the examiner should provide an
opinion with respect to each currently
present ankle disorder as to whether it
is at least as likely as not that the
disorder originated during the
appellant's active duty for training,
chronically increased in severity as a
result of such service or is otherwise
etiologically related to the appellant's
active duty for training, to include
whether the post-service ankle fracture
is etiologically related to a disorder
acquired or chronically worsened during
the period of active duty for training.
The complete rationale for all opinions
provided must be clearly set forth in the
examination report. If the examiner
disagrees with the opinion of Dr. Bash,
the examiner should explain why.
5. The RO should also undertake any
other development required to comply with
the VCAA and the implementing
regulations.
6. The RO should then readjudicate the
appellant's claim in light of the
evidence received since the supplemental
statement of the case issued in April
2001. If the benefit sought on appeal is
not granted to the appellant's
satisfaction, the RO should issue a
supplemental statement of the case and
afford the appellant and her
representative an appropriate opportunity
to respond.
Thereafter, the case should be returned to the Board for
further appellate action. The appellant need take no action
until she is otherwise notified by the RO. By this remand,
the Board intimates no opinion as to any final outcome
warranted.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
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 The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), 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) (2002).
