Citation Nr: 0810266 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-04 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased evaluation for left ankle disorder with postoperative scar, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The veteran had active service from June 1965 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO assigned a 10 percent rating for the veteran's service-connected left ankle disability, effective from April 2003. The veteran disagreed in January 2004, maintaining that he was entitled to a 30 percent rating. While the claims folder contains a November 2006 statement of the case with respect to a September 2005 rating decision which denied the veteran's claims for service connection for hearing loss, tinnitus, and a left arm disorder, the record does not reflect a substantive appeal as to these claims. Therefore, these issues are not subjects for current appellate review. The record also reflects that in his January 2004 notice of disagreement, the veteran expressed a desire to have a hearing before the Board in the event he was not provided with a 30 percent rating. However, his subsequent January 2005 substantive appeal does not reflect that he desires such a hearing. As the veteran's substantive appeal was filed after the notice of disagreement, the Board finds that the veteran no longer desires a hearing before the Board. Consequently, no further efforts to provide the veteran with a Board hearing are necessary in this matter. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran did not receive notice that complies with Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Such notice should be sent to the veteran. In requesting a 30 percent rating, the veteran has also demonstrated that he may not be familiar with the rating criteria applicable to his disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2007), which provides for a maximum rating for limited ankle motion of 20 percent. Thus, there is also evidence that the veteran has been prejudiced as a result of this inadequate notice. The veteran's representative has also recently asserted that the veteran's left ankle disorder has worsened, and the most recent VA examination was conducted in December 2004. Therefore, while the case is in remand status, the Board finds that the veteran should be afforded a new examination to ascertain the current severity of this service-connected disability. Accordingly, the case is REMANDED for the following action: 1. Send the veteran notice that includes an explanation as to the information and evidence needed for an increased rating claim, as outlined in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. Arrangements should be made to obtain any additional VA treatment records for the veteran's left ankle, dated since February 2005. 3. Thereafter, schedule the veteran for a VA examination of his left ankle and postoperative scar. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary studies should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should identify all residuals attributable to the veteran's service-connected left ankle disorder with postoperative scar. The examiner should report the range of motion measurements for the left ankle, in degrees. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including pain during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when the left ankle is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should also describe the postoperative scar, including its size and whether or not it is painful on examination or unstable (i.e., frequent loss of covering of skin over the scar). The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 4. Finally, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case, and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ P.M. DILORENZO 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) (2007).