Citation Nr: 1007441 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-18 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial evaluation in excess of 10 percent disabling for residuals, right tibia and fibula fracture, distal ?, with decreased range of motion, right ankle. REPRESENTATION Appellant represented by: Missouri Veterans Commission Entitlement to an initial evaluation in excess of 10 percent disabling for residuals, right tibia and fibula fracture, distal ?, with decreased range of motion, right ankle. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD T. Y. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty from December 2002 to September 2003, and from January 2004 to March 2005. This matter comes to the Board of Veterans' Appeals ("Board") on appeal from a June 2006 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Muskogee, Oklahoma, which granted the Veteran's claim for service connection for residuals, right tibia and fibula fracture, distal ?, with decreased range of motion, right ankle, with an initial evaluation of 10 percent disabling, effective March 16, 2005. 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 contends that the disability from his residuals, right tibia and fibula fracture, distal ?, with decreased range of motion, right ankle is greater than presently contemplated by the current 10 percent evaluation. Specifically, he contends that, in addition to decreased range of motion and daily right ankle pain, he also suffers from degenerative arthritis. He states that these symptoms affect both his activities of daily living, as well as his occupational activities. See Notice of Disagreement, March 2007; VA Form 9, June 2008. The Veteran's disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71, Diagnostic Code 5262 (2009). The Board notes that the Veteran was afforded a VA examination pursuant to his original service connection claim in May 2006. At that time, the examiner noted that he had reviewed the complete claims folder, including the Veteran's service and post-service treatment records, performed a complete physical examination, and reviewed diagnostic test results. The Veteran was afforded a second examination in November 2009 pursuant to his claim of an increased initial rating. However, the examiner noted that he had not received or had an opportunity to review the claims folder, nor had he been able to review the Veteran's updated diagnostic tests results. Instead, he noted that the Veteran had brought several records with him to the examination on his i-phone, and the examiner was forced to try to review his records this way. The Board notes that the records reportedly shown to the examiner by the Veteran included a 2008 evaluation by an orthopedic physician and the results of an MRI. It is unclear whether the records viewed were private treatment records, National Guard records, or VA treatment records. In any event, it does not appear that such records have been associated with the claims file. Consequently, the Board finds that this case must be remanded to ensure that all relevant records have been obtained and associated with the record. Furthermore, as noted, the November 2009 VA examiner did not have access to the Veteran's complete claims folder prior to the Veteran's examination, the Board finds such examination to be inadequate. The Board recognizes that the absence of claims file review does not necessarily render an examination inadequate or reduce the probative value of a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Snuffer v. Gober, 10 Vet. App. 400 (1997). In this case, however, the language used by the examiner in noting the absence of the claims folder suggests that the examiner felt that an opportunity to review the file would have been helpful. Therefore, the Board finds a remand is necessary in order to afford the Veteran an adequate VA examination that includes the opportunity to review the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify all private and VA health care providers who have treated him for his service-connected disability since 2005. As to any private providers, he should be asked to provide written authorization so as to allow VA to obtain those records. Regardless of whether he responds, obtain any available VA treatment records since February 2006. All records obtained or responses received should be associated with the claims file. 2. Ensure that any available treatment records from the Veteran's National Guard service from 2006 to 2009 are obtained and associated with the claims file. If necessary, request the assistance of the Veteran in locating and obtaining such records. 3. Arrange for the Veteran to undergo a new examination to determine the severity of the Veteran's current residuals, right tibia and fibula fracture, distal ?, with decreased range of motion, right ankle. The complete claims folder must be provided to the examiner prior to the examination, and the examiner must note that the claims folder has been reviewed. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The clinician must also elicit from the Veteran his history of both right ankle and right knee symptomatology. The examination report should specifically state the degree of disability present in both the Veteran's right ankle and right knee, his current range of motion in each joint, and identify any objective evidence of pain. The extent of any incoordination, weakened movement and excess fatigability on use in either of these joints should be described. To the extent possible, the functional impairment due to incoordination, weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. Any and all opinions must be accompanied by a complete rationale. 4. Thereafter, the issue on appeal should be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplementary Statement of the Case ("SSOC") and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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). _________________________________________________ MICHAEL LANE 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).