Citation Nr: 1105590	
Decision Date: 02/10/11    Archive Date: 02/18/11

DOCKET NO.  01-06 839A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUES

1.  Entitlement to an increased rating for a left ankle sprain 
from April 30, 2008, to July 1, 2010, currently rated as 10 
percent disabling.

2.  Entitlement to an increased rating for residuals of a left 
ankle injury with arthritis since July 2, 2010, currently rated 
as 20 percent disabling.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and Dr. Craig N. Bash



ATTORNEY FOR THE BOARD

David T. Cherry, Counsel 


INTRODUCTION

The Veteran had active service from February 1966 to December 
1969.

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a December 2000 rating decision of the 
Philadelphia, Pennsylvania, Regional Office (RO) of the 
Department of Veterans Affairs (VA).  Jurisdiction now is with 
the Phoenix, Arizona RO, although the record shows that the 
appellant currently resides in Pennsylvania.

In May 2009, the Board denied entitlement to a compensable 
evaluation for the left ankle disability prior to June 18, 2007, 
and granted a 10 percent evaluation for the left ankle disability 
from June 18, 2007, to April 29, 2008.  In April 2010 the RO 
effectuated the 10 percent evaluation, and assigned an effective 
date of June 18, 2007.  In a November 2010 rating decision, the 
RO assigned a 20 percent evaluation for the left ankle disability 
effective July 2, 2010.  The July 2010 VA examination report 
shows a diagnosis of arthritis.  The Veteran continued his 
appeal.  See AB v. Brown, 6 Vet. App. 35 (1993) (a veteran is 
presumed to be seeking the highest possible rating unless he 
expressly indicates otherwise).

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

In its May 2009 remand, the Board directed the RO to obtain all 
records pertaining to the left ankle disability since June 18, 
2007, to include VA treatment records.  In an authorization of 
release of medical records dated in July 2009, the Veteran 
indicated that he has been receiving treatment for his left ankle 
since 2007 at the Philadelphia VA Medical Center.  The RO did not 
request these records.  Therefore, the RO did not comply with the 
directives of the May 2009 Board remand.  Stegall v. West, 11 
Vet. App. 268 (1998).

Finally, the 2010 rating decisions show that the RO has granted 
entitlement to service connection for prostate cancer.   Thus, a 
temporary file, which contains a rating decision involving this 
grant of service connection and possibly pertinent evidence to 
the issues on appeal, exists.  The temporary file is not 
currently available to the Board.  Hence, the RO must obtain the 
temporary file.

Accordingly, the case is REMANDED for the following action:
 
1.  The RO must obtain all pertinent records 
regarding treatment of the left ankle 
disability from the Philadelphia VA Medical 
Center, since June 18, 2007.  All records 
received must be associated with the 
Veteran's VA claims folder.  If the RO cannot 
locate any identified Federal records, the RO 
must specifically document the attempts that 
were made to locate them, and explain in 
writing why further attempts to locate or 
obtain those government records would be 
futile.  The RO must then: (a) notify the 
claimant of the specific records that it is 
unable to obtain; (b) explain the efforts VA 
has made to obtain that evidence; and (c) 
describe any further action it will take with 
respect to the claims.  The claimant must 
then be given an opportunity to respond.
 
2.  The RO must attempt to associate the 
Veteran's temporary file with his claims 
file.

3.  Thereafter, the RO should undertake any 
additional development as warranted and must 
readjudicate the issues on appeal.  If any 
benefit is not granted, the appellant and his 
representative must be furnished with a 
supplemental statement of the case and 
afforded an opportunity to respond before the 
file is returned to the Board for further 
appellate consideration.
 
The appellant has the right to submit additional evidence and 
argument on the matters the Board has remanded.  Kutscherousky v. 
West, 12 Vet. App. 369 (1999).




_________________________________________________
DEREK R. BROWN
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).