Citation Nr: 1104723 Decision Date: 02/04/11 Archive Date: 02/14/11 DOCKET NO. 06-24 783A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an evaluation in excess of 0 percent for residuals of fracture to the left fibula. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from September 1977 to July 1981 and August 1982 to December 1985. This matter comes to the Board of Veterans' Appeals (Board) from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied entitlement to an increased rating for residuals of fracture to the left fibula. The RO subsequently continued the denial of this claim in September 2004. Since the Veteran's notice of disagreement with the denial of his claim was submitted within one year of the August 2004 decision, this is considered the decision on appeal. The Veteran was scheduled for a Board hearing in January 2008, but he did not appear or indicate any desire to reschedule. The Board remanded this case for additional development in September 2009. As discussed below, not all of the Board remand's directives were met. 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 As noted in the previous remand, the Veteran seeks an increased rating for residuals of fracture to the distal left fibula currently rated as 0 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5262. In order to get a 10 percent rating under Diagnostic Code 5262, the medical evidence must show impairment of the tibia and fibula with malunion of the tibia and fibula and slight knee or ankle disability. Malunion of the tibia and fibula with moderate knee or ankle disability gets a 20 percent rating; malunion of the tibia and fibula with marked knee or ankle disability gets a 30 percent rating; and nonunion of the tibia and fibula with loose motion, requiring brace gets a 40 percent rating. The Board remand directed the RO to contact the Veteran to see if he is receiving Social Security Administration (SSA) disability benefits for his service-connected left leg disability. The Veteran responded in August 2010 that he had been on SSA disability for his knees and depression since 2001. There is no record that the RO subsequently made attempts to obtain the SSA records. As the diagnostic code the Veteran is rated under considers impairment of the knees, these records should have been obtained. The Board is obligated by law to ensure that the RO complies with its directives. Compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, to ensure that VA has met its duty to assist the Veteran in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case must be remanded again. An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) also should be considered. The Veteran reported on a VA medical record dated in May 2005 that he had not worked since March 2002. Accordingly, the case is REMANDED for the following action: 1. Obtain SSA records for the Veteran, which he stated that he began receiving in 2001. The SSA decision and supporting documents used to make the decision should be added to the claims file. 2. Thereafter, reconsider the Veteran's claim for an increased rating for residuals of fracture to the left fibula, including whether he is entitled to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). If either benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and allow for a reasonable period to respond. The appellant 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 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. 2010). _________________________________________________ RONALD W. SCHOLZ 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) (2010).