Citation Nr: 0810988 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-32 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the right ankle, to include as secondary to service-connected right tibial shaft fracture residuals. 2. Entitlement to service connection for a right foot condition, to include as secondary to service-connected right tibial shaft fracture residuals. 3. Entitlement to service connection for left foot bone spurs, to include as secondary to service-connected right tibial shaft fracture residuals 4. Entitlement to an increased rating for residuals of right tibial shaft fracture with degenerative joint disease, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from May 1960 to May 1963, from July 1963 to July 1967 and form March 1982 to August 1996. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a September 2004 rating determination of the VA Regional Office in St. Petersburg, Florida that denied an increased rating for residuals of right tibial shaft fracture, as well as service connection for bilateral foot disabilities and a right ankle disorder, all to include as secondary to service-connected right tibial shaft fracture residuals. Following review of the record, 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 asserts that the symptoms associated with his service-connected residuals of right tibial shaft fracture with degenerative joint disease are more severely disabling than reflected by the currently assigned disability evaluation, and warrant a higher rating. The appellant presented testimony on personal hearing on appeal in February 2008 to the effect that his symptoms had gotten much worse, to the extent that he had to reduce his work hours from 40 to 20 per week. He stated in effect that his symptoms had reduced the quality of his life. The Board observes that the veteran last had a VA examination for compensation and pension purposes in August 2004. The United States Court of Appeals for Veterans Claims (Court) has held that when a veteran claims that a disability has worsened since the last examination, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and the veteran's contention that the pertinent disability has increased in severity); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Under the circumstances, the appellant will be provided an opportunity to report for a current VA orthopedic examination to ascertain the current status of the service-connected left ankle disorder. The veteran also contends that he now has disabilities of the right ankle and both feet that are secondary to the service- connected residuals of right tibial shaft fracture with degenerative joint disease. When examined in August 2004, in response to an RO request for a clinical opinion, the examining nurse practitioner stated that "[a]ttributing patient's left calcaneal spur, DJD of the right ankle is not likely, and attributing patient's current foot symptoms and condition to his posterior tibia/fibula fracture and right ankle DJD would require medical speculation and conjecture." The Board points out that what was sought through the remand was a review of the veteran's clinical history and a medical conclusion, enhanced by the examiner's expertise, as to whether any right and left foot and right ankle disorder were more likely than not related to the service-connected right tibial shaft fracture. In this instance, the examiner's opinion was not sufficiently instructive as to the degree or probability of whether the claimed disabilities were related to the service-connected disorder. The Board finds that this opinion is cursory, somewhat contradictory, and lacks clarity on the whole. It is thus found to be unsatisfactory and inadequate for adjudication purposes. Service connection may be granted for a disability that is proximately due to or the result of an established service- connected disorder. 38 C.F.R. § 3.310 (2007). This includes disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Board observes that the VA examination in 2004 did not consider whether or not the veteran's right ankle and bilateral foot disabilities had been made chronically worse by the service-connected right tibial shaft fracture residuals. This should also be addressed.. The Board is therefore of the opinion that the appellant should be re-examined by a specialist for review of the record and a medical opinion. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Finally, the veteran testified on personal hearing in February 2008 that he received treatment for service- connected disability at the Bay Pines (FL) VA facility. The most recent records date through February 9, 2006. Therefore clinical records dating from February 10, 2006 should be requested and associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. Review the claims file and ensure that all actions required by the Veterans Claims Assistance Act of 2000 (VCAA) are completed and satisfied with respect to all issues on appeal. In particular, the RO should ensure that the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007); and the Court's holding in Vazquez-Flores v. Peake, No. 05- 0355 (U.S. Vet. App. January 30, 2008) are fully met with respect to the claims on appeal since the most recent duty-to-assist letter dated in March 2005. 2. The veteran should be contacted and requested to identify all healthcare providers, to include VA, who have treated him for right ankle, and foot disabilities. He should be requested to complete and return the appropriate release forms so that VA can obtain that evidence. 3. VA outpatient records dating from February 10, 2006 should be requested and associated with the claims folder. 4. After a reasonable time for receipt of additional records, the veteran should be scheduled for examination by a VA orthopedist, which should include a functional capacity evaluation to assess the severity of the service-connected of right tibial shaft fracture with degenerative joint disease. The claims folder and a copy of this remand should be provided to the examiner in connection with the examination. The examiner must indicate whether or not the claims folder was reviewed. All indicated tests and studies should be conducted and clinical findings should be reported in detail in a detailed narrative format. The examination report should reflect consideration of the veteran's documented medical history, current complaints, and other assertions, etc. A The examiner should indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the service-connected left ankle. In addition, the examiner should indicate whether, and to what extent, the veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare- ups and/or with repeated use. The examiner should express such functional loss in terms of additional degrees of limitation of motion (beyond that clinically shown). B The examiner is also requested to provide an opinion as to a) whether it is at least as likely as not (a 50 percent probability or better) that the veteran now has disabilities of both feet and the right ankle that are secondary to or proximately due to the service-connected right tibial shaft fracture residuals with degenerative joint disease and b) whether the veteran's feet and right ankle have been made chronically worse by the service- connected right tibial shaft fracture residuals. If aggravation is found, the examiner should offer an assessment of the extent of additional disability resulting from aggravation by right tibial shaft fracture residuals. Complete and detailed rationale is requested for the opinions provided 5. The veteran must be given adequate notice of the examination, to include advising him of the consequences of failure to report under 38 C.F.R. § 3.655 (2007). 6. The RO should ensure that the medical report requested above complies with this remand. If the report is insufficient, or if any requested action is not taken or is deficient, it should be returned to the examiner for correction. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After taking any further development deemed appropriate, re-adjudicate the issues on appeal. If the benefits are not granted, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ F. JUDGE FLOWERS 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) (2006).