Citation Nr: 1009488 Decision Date: 03/12/10 Archive Date: 03/17/10 DOCKET NO. 96-21 865 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a higher initial rating for right ankle instability with post-traumatic arthritis, rated as 20 percent disabling from December 22, 1990. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD R. Kessel, Counsel REMAND The Veteran had active military service from January 1983 to December 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. Most recently in the case's history, the Board remanded the claim to the agency of original jurisdiction (AOJ) in January 2007 for additional development. A review of the claims file reveals that the AOJ was able to complete the multifaceted development request to a great extent. However, the January 2007 remand instructions included one specific request to obtain any x-ray reports and radiologist notes prepared in connection with a March 2006 VA examination. The March 2006 examiner referred to this evidence in his report that were created the same day, but no x-ray reports or radiologist notes were associated with the claims file at that time. The Board found that the evidence in question was deemed in constructive possession of VA and it was required to be considered by the AOJ prior to a re-adjudication of the claim. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Consideration of the March 2006 x-ray reports and radiologist notes is particularly important given the salient question of whether the Veteran's service-connected right ankle disability has been manifested by malunion or nonunion of the tibia or fibula. See 38 C.F.R. § 4.71a (Diagnostic Code 5262) (2009). This type of possible problem with the Veteran's right ankle has been the primary argument of the Veteran and his representative concerning their contention that an initial rating in excess of 20 percent is warranted for the disability. Notably, in August 2009, the Veteran stated that his only wish was to have an examination concerning the condition of his leg, which he believes was never allowed until 2008 [sic]. He found the examination (presumably referring to the March 2006 examination) to be thorough and complete and that it included x-rays. The Veteran concluded that if the doctor found no evidence of malunion at that time, he will not contest the doctors' finding. Given that the Board's January 2007 remand instructions included the explicit request for the AOJ to obtain and consider the x-ray reports and radiologist notes from the March 2006 VA examination, the Board finds that the case must be remanded to complete this development. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, this case is REMANDED for the following actions: 1. Obtain any x-ray reports and radiologist notes prepared in connection with the VA examination of March 2006. Follow the procedures outlined in 38 C.F.R. § 3.159(c)(2) (2009). If VA is unable to obtain the evidence, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. After undertaking any other development deemed appropriate, re- adjudicate the issue on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and afford them an opportunity to respond before the record is returned to the Board for further review. The SSOC must include consideration of any obtained x- ray reports and radiologist notes prepared in connection with the VA examination of March 2006. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).