Citation Nr: 1002385 Decision Date: 01/14/10 Archive Date: 01/22/10 DOCKET NO. 08-24 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable rating for service- connected right ankle instability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Chaplin, Counsel INTRODUCTION The Veteran served on active duty from December 1990 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that granted service connection for right ankle instability evaluated as zero percent disabling (noncompensable) effective in January 2006. The Veteran's statements during the pendency of the appeal are construed as raising a claim of entitlement to an increased rating for a left ankle disability. This issue is not currently in appellate status and has not yet been adjudicated by the RO. Accordingly, this issue is referred back for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran disagrees with the initial rating assigned for service-connected right ankle instability. He asserts that his right ankle instability is worse than the current noncompensable rating reflects and that it should be rated under diagnostic code 5310 as a muscle disability. Further development is needed prior to appellate review. At a VA examination in March 2007 the diagnosis was instability of the right ankle due to repetitive ankle sprains in the service. X-rays taken at that time noted slight widening of the right ankle joint laterally suggesting some right lateral ligament disease. Correlation and further investigation was suggested. At a hearing in October 2008 at the RO before a Decision Review Officer, the Veteran testified as to his right ankle symptoms and treatment, as well as the and effects such disability had on his activities. The Veteran testified that he wore an over-the-counter ankle brace on his right ankle on an occasional basis, approximately for four weeks out of a twelve month period. The RO requested that a VA medical center schedule the Veteran for an examination of his right ankle. The claims file contains a report that the Veteran failed to report for two examinations scheduled in January 2009. However, there is no record in the claims file of a notification letter to the Veteran regarding the scheduled examinations or of notice regarding the effect on his claim if he failed to report for an examination. In light of the fact that the record does not reflect that the Veteran was notified of the scheduled examinations or was specifically advised of the consequences of failing to report for a VA examination, the Board determines that the Veteran should be provided one more opportunity to report for a VA examination. The Board reminds the Veteran that the duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service- connected right ankle disability. The claims folder must be made available to and be reviewed by the examiner and the review should be noted in the examination report. All appropriate tests and studies, including x-rays and range of motion studies of the ankle, reported in degrees, should be accomplished. The examiner should describe any pain, weakened movement, excess fatigability and incoordination. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the right ankle. The examiner should address the March 2007 x-ray finding of slight widening of the right ankle joint suggesting some right lateral ligament disease. If right ligament disease is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) related to (a) service; or (b) an incident in service; or (c) proximately due to or the result of his service-connected right ankle instability; or (d) aggravated by his service-connected right ankle instability. The rationale for any opinion expressed should be provided. 2. The Veteran should be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. Then, readjudicate the claim to include consideration of the Veteran's contention that diagnostic code 5310 should be applied. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case 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. 2009). _________________________________________________ ERIC S. LEBOFF Acting 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) (2009).