Veteranclaims’s Blog

May 8, 2012

Single Judge Application, Kahana, 24 Vet.App.428, 436 (2011); For Absence of Notation, Service Medical Records Must be Complete

Excerpts from decision below:
“A. The Secretary’s Examination Request
The appellant contends that the Secretary’s examination request, pertaining to the most recent VA medical opinion, inappropriately biased the examiner’s opinion by essentially stating a factual premise unsupported by any Board finding. The appellant focuses in particular on the following paragraph: “Following examination and review of the claims folder, please provide an opinion as to whether any current disability of either knee is as likely as not the result of parachute jumps in service or if right knee disability is likely related to one-time complaint during service.” R. at 84.
This request clearly advances the premise that there was only a single
complaint of a knee injury in service and requests the examiner to opine whether the appellant’s current knee condition may be explained by that incident as documented in the STRs.
The Court notes that the appellant argued below that there is a second STR,
dated May 26, 1956, that “appears to state ‘knees feel hurt.'” R. at 1305. The Court is unable to verify this assertion; the only document of that date in the record is illegible. See R. at 1707.
In any view of the matter, this argument raises a dispute as to the content of the STRs. Therefore, the Court agrees with the appellant that the Secretary’s instruction contained an inappropriate factual premise that may have truncated the examiner’s review of the record. See Kahana v. Shinseki, 24 Vet.App. 428, 436 (2011) (Secretary erred by suggesting factual premise from what may have been an inaccurate summary of the service records)
=======================
In any event, the Board made no finding of fact that the SMRs in the
record may be regarded as complete. See Kahana, 24 Vet.App. at 440 (Lance, J., concurring) (in order to rely on absence of notations in SMRs, the Board must first find that the SMRs appear to be complete).
The
Secretary’s examination request assumes a single in-service complaint of
knee injury, which demands, as a logical prerequisite, complete SMRs.
The Court concludes that the SMRs are useful only for what they distinctly show.
=============================
—————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-0010
DONALD R. RAMSEY, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before DAVIS, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

DAVIS, Judge: U.S. Army veteran Donald R. Ramsey appeals through counsel
from a September 8, 2010, Board of Veterans’ Appeals (Board) decision that denied entitlement to service connection for a lumbosacral spine and bilateral knee disabilities and a
disability rating in excess of
20% for a service-connected right-ankle condition. For the following
reasons, the Court will set
aside the Board’s September 2010 decision and remand the case for further
proceedings consistent
with this decision.
The appellant primarily argues that the Board failed to obtain adequate VA
medical opinions.
With respect to the knee disabilities, he argues that the Secretary’s
examination request for the most
recent VA medical examination impermissibly tainted the examiner’s
opinions by suggesting a
factual premise that is unsupported byappropriate findings of the Board.
He furtherargues that none
of the VA examiners’ conclusions are supported by an appropriate medical
explanation, rendering the Board’s statement of reasons or bases inadequate. Finally, he argues that the Board’s denial of
an increased rating for his right-ankle disability is not supported by a
sufficient statement of reasons or bases that accounts for all the evidence of record. As discussed below, the Court finds merit in
all of these arguments.
The appellant served on active duty from July 9, 1954, to June 25, 1957,
including service

as a paratrooper. He alleges that he sustained multiple injuries in
parachute jumps, including knee and back injuries, and ankle injuries, with one ankle injury resulting in service connection. He states
that the symptoms of the knee and back injuries continued after service
and worsened with time, eventuating in bilateral knee replacements and degenerative arthritis of the lumbar spine. He testified that while he sought medical attention as he could afford it
after service, he primarily self-
treated with ankle and knee braces and over-the-counter pain medication.
The appellant sustained a postservice work-related injuryto his knees on
June 29, 1989. The
resultant proceedings of the Office of Workmen’s Compensation Programs (
OWCP) indicated that
he twisted the right knee, which placed stress on the left knee. See
Record (R.) at 6 (“The OWCP’s
accepted injuries from this incident were bilateral knee sprains.”), 314.
However, later medical
procedures revealed his knee conditions were much more complicated. The
Board noted that “[a]n
October 1989 magnetic resonance imaging (MRI) study of the right knee
contains an impression
noting degenerative changes with possible Grade I tears of the posterior
limbs of the menisci, small
joint effusion, a possible loose body, and a possible tear of the cruciate
ligament.” R. at 6; see also
R. at 1033 (arthroscopy postsurgical record dated August 30, 1990,
containing postoperative
diagnosis that included: “1. Degenerative arthritis of the right knee 2.
osteochondral loose body of
the right knee 3. torn medial and lateral meniscus of the right knee 4.
Chondromalacia of the patella,
right knee”). Eventually, the OWCP paid for the bilateral knee
replacements and the appellant
retired soon thereafter, when he found he could no longer perform his
duties as a sheet metal worker
on airplanes at Tinker Air Force Base.

I. ANALYSIS
A finding of service connection or the denial thereof is a finding of fact
that the Court
reviews underthe “clearly erroneous” standard of review. See Dyment v. West, 13 Vet.App. 141, 144
(1999). The assignment of a disability rating is also a factual finding
that the Court reviews under
the “clearly erroneous” standard of review. Johnston v. Brown, 10 Vet.App.
80, 84 (1997). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, “is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App.
49, 52 (1990).
2

The Board is required to consider all evidence of record and to consider
and discuss all “potentially applicable” provisions of law and regulation. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(a); Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order). In rendering its decision, the Board must provide a statement of reasons or bases that is adequate to enable an appellant to understand the precise basis for its decision and to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with these requirements, the Board must analyze the
credibility and probative value of the evidence, account for the evidence
it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table).
A claim for service connection must generally be supported by evidence
demonstrating “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury;
and (3) a causal relationship between the present disability and the
disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In the decision here on appeal the Board made no findings as to the existence of present disabilities, although there appears to be no divergence between the opinions of private physicians and VA physicians that the appellant has “[d]egenerative joint disease of the bilateral knees status post total
knee replacement,” and “[m]ultilevel degenerative joint disease of the
lumbar spine with spondylolisthesis and spinal canal stenosis.” Record (R.) at 79 (February 2010 VA examination report); see also R. at 1494 (private physician’s diagnosis of “multilevel degenerative disease and
degenerative spondylolisthesis at L5-S1”).
Service connection mayalso be established by chronicity and continuity of
symptomatology. See 38 C.F.R. § 3.303(b) (2011). Continuity of symptomatology may establish service connection if a claimant can demonstrate that (1) a condition was “noted” during service; (2) there is postservice
evidence of the same symptomatology; and (3) there is medical or, in
certain circumstances, lay
evidence of a nexus between the present disability and the postservice
symptomatology. Barr v.
Nicholson, 21 Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App.
488, 495-96 (1997)).
As the Board acknowledged during a hearing (see R. at 1298), there is
record evidence
3

tending to support the first two requirements for obtaining service
connection by continuity of
symptomatology. The Board decision supports the occurrence of conditions
noted in service. “The
Veteran’s service treatment reports (STRs) show that in May 1955, he was
treated for a left knee
injury related to a parachute jump, and that he was provided with a
bandage. In July 1956, he was
treated for a sprained back, and the reports note that an X-ray was
negative.” R. at 6. The appellant
and members of his family testified that knee and back symptoms continued
after service. See R. at
1230, 1232, 1280-82. As discussed more fully below, the Board criticized
portions of this lay
evidence but stopped short of finding it not credible. See Coburn v.
Nicholson, 19 Vet.App. 427,
433 (2006) (“[T]he Board addressed conflicting facts but it never rendered
a finding with regard to
the credibility of [the appellant’s] statements to the medical examiner.”).
Thus, as with many such
cases, the result depends on the analysis of the nexus evidence.

A. The Secretary’s Examination Request
TheappellantcontendsthattheSecretary’s examination request, pertaining to the most recent VA medical opinion, inappropriately biased the examiner’s opinion by essentially stating a factual premise unsupported by any Board finding. The appellant focuses in particular on the following paragraph: “Following examination and review of the claims folder, please provide an opinion as to whether any current disability of either knee is as likely as not the result of parachute jumps in service or if right knee disability is likely related to one-time complaint during service.” R. at 84.
This request clearly advances the premise that there was only a single
complaint of a knee injury in service and requests the examiner to opine whether the appellant’s current knee condition may be explained by that incident as documented in the STRs.
The Court notes that the appellant argued below that there is a second STR,
dated May 26, 1956, that “appears to state ‘knees feel hurt.'” R. at 1305. The Court is unable to verify this assertion; the only document of that date in the record is illegible. See R. at 1707.
In any view of the matter, this argument raises a dispute as to the content of the STRs. Therefore, the Court agrees with the appellant that the Secretary’s instruction contained an inappropriate factual premise that may have truncated the examiner’s review of the record. See Kahana v. Shinseki, 24 Vet.App. 428, 436 (2011) (Secretary erred by suggesting factual premise from what may have been an inaccurate summary of the service records)
4

It is also entirely unclear how the Board could legitimately conclude
that the STRs were
complete enough to ensure that the single knee incident evident from the
available and legible
records was the only in-service incident involving a knee injury. The
appellant’s service records
were fire damaged and several of the documents in the record of
proceedings (ROP) are but copies
of charred fragments, with as much as half of their content obliterated.
The response to VA’s
request for service records reads as follows: “Record is fire-related. The
original SMRS [service
medical records] are moldy or brittle and cannot be mailed. Copies of all
available SMRS
<>.” R. at 1699 (emphasis added). This response at least suggests
the possibility that the
complete set of SMRs was unavailable. The appellant correctly notes that
the first page of the
separation examination report is missing from the record, raising the
possibility that the SMRs may
be incomplete in other ways. Furthermore, the Court’s review of the SMRs
reveals that certain
entries are illegible (see R. at 1703, 1707); because the Board did not
have the originals, it was in
no better position to assess the illegible content.
In any event, the Board made no finding of fact that the SMRs in the
record may be regarded as complete. See Kahana, 24 Vet.App. at 440 (Lance, J., concurring) (in order to rely on absence of notations in SMRs, the Board must first find that the SMRs appear to be complete).
The
Secretary’s examination request assumes a single in-service complaint of
knee injury, which demands, as a logical prerequisite, complete SMRs.
The Court concludes that the SMRs are useful only for what they distinctly
show. The Secretary’s inference,conveyed in the examination request,
that the records demonstrate one and only one knee incident in service is impermissible. Because this inference injected a possibly false
premise into the examiner’s analysis, the matter requires a remand for a
new medical opinion.

B. The Knee Conditions
1. VA Examination Reports
The Board relied on two VA medical examinations in denying service
connection for the
appellant’s bilateral knee conditions. The VA examiner’s analysis in
February 2010 was as follows:
[I]t is the opinion of this examiner that the degenerative joint disease
of the bilateral
knees status post total knee replacement is less likely than not secondary
to the
parachute jumps in the service and is also less likely than not secondary
to the one
5

time complaint related to the left knee documented in the military record.
The
rationale is that there is no documentation regarding knee problems
between his
discharge date in 1957 and the documented workman’s compensation injury in
1989.
R. at 79. As the Board acknowledged in evaluating the appellant’s medical
evidence of nexus, “a
bare conclusion that is unaccompanied by discussion, explanation, or
citation to clinical findings
during service” is entitled to no weight in a service-connection context.
R. at 12; see also Nieves-
Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008).
The above-quoted passage from the examiner’s report that purports to be a
rationale is, in
fact, a mere recital of the content of the available records. The examiner
offered no medical analysis
why she relied so heavily on lack of postservice medical records. For
instance, she did not state that
had the in-service stress and injuries eventuated in the degenerative
conditions and loose bodies found in 1989 such effects would be expected to develop rapidly after service and demand medical attention. Cf.Kahana, 24 Vet.App. at 432 (Board made inappropriate medical finding that had the claimed injury occurred in service, it would have required medical treatment and thus should have been recorded in SMRs). Thus, the February 2010 medical examination report adds no medical support to the Board’s analysis.
The examiner may have intended to imply that the appellant’s knee
conditions were more
likelythe result of the work-related injury. If so, however, she offered
no explanation how the work-
related incident in June 1989 could have resulted in the degenerative
conditions, foreign bodies, and
chondromalacia by October of the same year.
The Board also discussed the results of an August 2006 VA joints
examination, which
resulted in the following opinion:
I do not see any evidence [] that the veteran had continuation of his knee
problems
of that one instance when he was seen in service. So I cannot without
resorting to
speculation saythat the veteran’s current knee problems are related to his
one episode
of knee pain while in service. It is more likely that the Workman’s Comp
injuries led
to his problems, but I have no records of what the Workman’s Comp injury
was and
when it had happened.
R. at 1435. The second sentence neither adds nor detracts from the Board’s
analysis of the
appellant’s knee claims; it merely states that a supportive conclusion may
not be drawn on the basis
of the available in-service medical records. The third sentence is
ludicrous on its face and the Court
6

is amazed that it is included in any serious analysis of this service-
connection issue. Thus, to the
extent that the Board may have regarded the appellant’s knee conditions as
the product of the work-
related injury, neither VA examination report lends any support to that
view.
2. The Board’s Analysis
Neither VA examiner discussed the implications of the lay evidence in the
record that tends
to support a continuity-of-symptomatology claim. In addition to the
appellant’s statements that his
knee conditions began in service and worsened through the years (see R. at
76), the record contains
statements from both of the appellant’s sons that they observed symtpms of
the appellant’s knee
conditions from a quite early age. In a statement dated January 22, 2009,
his elder son recalled:
“During the fifty years of my life, I observed first hand the agony and
suffering my father has
endured due to chronic pain and swelling in his knees . . . . I can
remember him getting injections
in his knees and having to wrap them and still struggling to get around.”
R. at 1230. He further
stated that he observed his father experiencing knee pain “[f]or as long
as I can remember.” Id. This
statement places the son’s observations potentiallyas far back as the mid-
1960s and corroborates the
appellant’s testimony that he sought episodic medical assistance and self-
treated with bandages in
the years closely following service. The younger son stated that he ”
cannot remember a time when
[the appellant] didn’t limp . . . I remember his knees were swelled up all
the time.” R. at 1232. This
statement puts the younger son’s observations potentially back to the
early 1970s, certainly much
earlier than 1989.
While VA medical examiners have no duty to discuss all the relevant
evidence of record, the
Board certainly does. The Board noted a “job application, and an
associated ‘Supplemental
Experience Statement’ (CSC Form 630), dated in July 1970, which shows that
the Veteran stated,
‘Paratrooper for 3 years without any serious injury.'” R. at 6. Later, in
evaluating the lay evidence,
the Board stated: “Although the Veteran has asserted that he began having
a knee and low back
symptoms during service, this is contradicted, to an extent, by his 1970
statement in his job
application.” R. at 14. Because the Secretary provides no record citation
for this document, and the
Court was unable to locate it in a 1264-page ROP, the Court’s review is
somewhat frustrated.
The Board certainly mayconsider inconsistent statements in making
credibility evaluations.
See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can
consider bias in lay
7

evidence and conflicting statements of the veteran in weighing
credibility); Caluza v. Brown,
7 Vet.App. 498, 511 (1995) (“The credibility of a witness can be impeached
by a showing of interest,
bias, inconsistent statements, or, to a certain extent, bad character.”).
As with any determination,
however, the Board must explain the reasoning behind its credibility
assessments.
Accepting the Board’s characterization of the 1970 document, however, the
Court views the
content as equivocal at best. The appellant’s perception of what he may
have regarded as a “serious
injury” must be viewed in the light of the fact that the SMRs document the
fact that both his ankles
had apparently been fractured. See R. at 75, 1725.
At any rate, the Board really did not make a negative credibility finding
as to the appellant’s
statements; it only stated that “the lay testimony is insufficiently
probative to warrant a grant of any
of the claims.” R. at 14. The Board undertook no discussion or analysis of
the statements of the
appellant’s sons.
The Board concluded that “the [SMRs], and the post-service medical
evidence, outweigh the
Veteran’s contentions to the effect that the Veteran has the claimed
conditions that are related to
service.” R. at 15. The Board must reevaluate this assessment consistently
with this decision.
Citing Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000), the Board
reiterated the gap of 31
years in medical records concerning the knee conditions and stated that
this gap weighed against the
claim. The Maxson case is a oft-cited and much-abused precedent. In Maxson
the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) was considering whether
the absence of treatment records for an extended number of years could be considered in the context of rebutting the presumption of aggravation under 38 U.S.C. § 1153. Such consideration is consistent with the
regulatory scheme pertaining to the presumption of aggravation because it
is relevant to determining whether there was a permanent worsening in the preexisting disability. The Court does not read the case as setting forth any general principle that a gap in medical records, regardless of the factual context of a case, weighs against a service-connection claim. Thus, the
mere absence of medical
records, without more, does not support an inference that a veteran had no
health problems in the intervening years.
In general, there are many reasons that the record may not contain medical
documentation for a period of years. Among these reasons is the possibility that a veteran’s life situation may be
8

such that he cannot afford frequent visits to physicians or that he may
be more inclined to bear up under progressively worsening symptoms until they become unbearable. The Board should have considered the lay evidence indicating that such explanatory factors may
have been operative in this
case. See R. at 1281, 1291-92 (appellant’s hearing testimony concerning
years immediately after
service).
For the foregoing reasons, the Court holds that the Board’s statement of
reasons or bases is
inadequate to support its ultimate conclusions with respect to the
bilateral knee disorder. Therefore,
the Court will set aside those findings and remand the matter for further
proceedings.

C. The Back Condition
1. The VA Examination Reports
The February 2010 VA examination report noted an absence of postservice
documentation
of lower back pain until the 1990s following the knee replacement
surgeries. The examiner
concluded that the lumbosacral spine condition was less likely than not
related to military service.
The examiner’s rationale was that “there is a onetime injury to the left
low back in July of 1956 but
no other complaints throughout the military service showing no chronicity
of symptoms.” R. at 79.
Again, this statement is not a medical explanation but a mere reiteration
of the state of the document
record.
A September 2006 report from a VA spinal examination was inconclusive. The
examiner’s
statement reads as follows:
The veteran was seen twice for the back pain [in service] and had a normal
x-ray at
that time and had no problems until about 40 years after leaving service.
So I cannot
really give an opinion without resorting to speculation as to whether the
veteran’s
current back problems are related to his service.
R. at 1426; see also R. at 1420 (indicating that the appellant was seen on
July 26, 1956, and again
on July 30 for back complaints). The Board referred to “[a] VA spine
examination report, dated in
August 2006.” R. at 8. This reference may have been an inadvertence,
stemming from the fact that
the same examiner conducted the August 2006 joints examination that was
discussed previously.
The Board went on to erroneouslystate, however, that “the Veteran was
onlyshown to have had one
treatment for back symptoms in one month during service.” Id. (emphasis
added). In weighing the
evidence pertaining to the back condition, the Board did not rely on the
2006 report.
9

2. The Board’s Analysis
The Board began its discussion of the lumbosacral spine disorder with the
assertion that “the
Veteran was treated for back symptoms in July 1956, with no subsequent
treatment during his
remaining service, a period of about 11 months.” R. at 11. As discussed
previously, this premise
depends on the doubtful proposition that the SMRs are complete in the
record, a finding that the
Board did not make.
The Board further noted that “a lumbosacral spine disorder was not noted
upon separation
from service.” Id. The Board should have explained the significance it
attached to this fact, in view
of the fact that postservice diagnosis of the back condition was made with
the aid of an MRI, a
technology not available in 1957. Moreover, as the appellant points out,
the separation examination
report also does not mention the ankle condition, which is reflected
elsewhere in the SMRs and for
which service connection was later awarded. Thus, neither the Board nor
the record itself supports
an exception to the rule that the absence of evidence is not substantive
negative evidence. See
Buczynzki v. Shinseki, 24 Vet.App. 221 (2011).
Furthermore, the Board made no attempt to reconcile the divergent evidence
regarding the
number of complaints in the SMRs for a back condition. The February 2010
VA examiner stated
that “there is a onetime injuryto the left low back in Julyof 1956 but no
other complaints throughout
the military service showing no chronicity of symptoms.” R. at 79. As the
September 2006 report
notes, however, the appellant was seen twice for back complaints in the
same month. It is unclear
whether the February 2010 examiner believed that there was only one
complaint of back symptoms
or whether she was attributing the two visits to the same injury. The
Board should have sought
clarification. See Savage v. Shinseki, 24 Vet.App. 259 (2010). Moreover,
there is a private medical
examination report that identifies three visits to physiotherapy in the
SMRs after the documented
July 1956 injury. See R. at 1494. The Board should have reconciled this
evidence, because the
February 2010 VA examiner’s analysis depended in part on a lack of
chronicity during service.
There is also no analysis in the VA medical examination reports pertaining
to the possible
effect of multiple parachute jumps before and after the documented
July1956 injury. See McLendon
v. Nicholson, 20 Vet.App. 79, 83 (2006) (if a veteran’s military records
indicate he served as a
paratrooper,makingmultiplejumps duringservice,
andtheveterannowhasevidenceofarthritis that
10

he indicates was due to those jumps, VA must obtain a medical opinion as
to a possible link). The
February 2010 VA examination report is inadequate because it failed to
consider this matter.
Finally, the Board’s discussion of the lay evidence is similarly
inadequate to support its
analysis. In particular, the Board made no mention of the younger son’s
observation that he noticed
the appellant’s back “was kinda hunched over.” R. at 1232.
For the foregoing reasons, the Court holds that the Board’s statement of
reasons or bases is
inadequate to supportits ultimate conclusionswith respectto
thebackdisorder. Therefore, the Court
will set aside those findings and remand the matter for further
proceedings.

C. Ankle Injury
The principal dispute as to the appropriate disabilityrating for the ankle
injuryis whether the
appellant’s right ankle has ankylosis. See 38 C.F.R. § 4.71a, Diagnostic
Code 5270 (2011) (ankle,
ankylosis of). The appellant contends that he is entitled to a higher
rating under this diagnostic code
for the ankylosis of his right ankle.
The Board acknowledged that ankylosis includes immobility due to a
surgical procedure.
See R. at 16 (citing Shipwash v. Brown, 8 Vet.App. 218, 221 (1995)). The
Board further
acknowledged that the appellant “underwent a right ankle arthrodesis.” R.
at 16.
An “arthrodesis” is “the surgical fixation of a joint by a procedure
designed to accomplish
fusion of the joint surfaces by promoting the proliferation of bone cells;
called also artificial
ankylosis.” DORLAND’SILLUSTRATEDMEDICALDICTIONARY157 (32d ed. 2012). Yet,
the February
2010 VA examination report indicates that “there is no evidence of
ankylosis.” R. at 79. Neither
the examination report nor the Board offers anyexplanation how this
observation can be true despite
the acknowledged surgical procedure. Thus, the Court must remand this
issue for a fuller
explanation.
The Court must remand the matter of the ankle disability for the
additional reason that the
evidence seems to indicate that there may be an additional claim for a
secondary ankle condition.
See Schafrath, supra; Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (
Board is required to
consider all issues raised either by the claimant or by the evidence of
record), aff’d sub nom.
Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). In a letter dated
April 13, 2009, Dr. Paul
Kammerlocher indicated that the appellant has “severe ankle pain in his
subtalar joint, which has
11

gone on to secondary post-traumatic arthrosis as a result of his ankle
fusion, which by his history is
a direct result of injury he sustained in the Army in 1956.” R. at 1238.
The Board must evaluate
whether this evidence raises a claim for secondary service connection for
the condition described by
this physician. See Clemons v. Shinseki, 23 Vet.App. 1 (2009).
For the foregoing reasons, the Court holds that the Board’s statement of
reasons or bases is
inadequate to support its ultimate conclusions with respect to the
disability rating for the right ankle.
Therefore, the Court will set aside those findings and remand the matter
for further proceedings.

II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the Board’s
September 8, 2010, decision, and REMANDS this case for further proceedings consistent with this decision and readjudication.
On remand, the appellant will be free to submit additional evidence and
argument as to his claims and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final Board decision following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board’s new final decision is mailed to the appellant. Marsh v. West, 11 Vet.App. 468, 472 (1998).
DATED: April 30, 2012
Copies to:
Sandra E. Booth, Esq.
VA General Counsel (027)
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