Citation Nr: 1120370 Decision Date: 05/25/11 Archive Date: 06/06/11 DOCKET NO. 10-38 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 20 percent for residuals of a right ankle fracture. ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The Veteran had active service from January 1973 to March 1975 and from March 1975 to April 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2009 by a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that his service-connected residuals of a right ankle fracture have gotten worse and that this decline warrants a higher disability evaluation. The RO originally awarded service connection for residuals of a right ankle fracture in a rating decision dated June 1981. The RO evaluated the Veteran's right ankle disability as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5271 (limitation of motion of the ankle), effective April 2, 1981. In November 1995, the RO increased the Veteran's disability evaluation under Diagnostic Code 5271 to 20 percent, effective September 13, 1995. A subsequent rating decision dated April 2005 continued the Veteran's 20 percent evaluation for residuals of a right ankle fracture under Diagnostic Code 5271. However, the RO awarded the Veteran a separate 10 percent evaluation for a right ankle scar with neuritis of the right superficial peroneal nerve, effective January 19, 2005. See April 2005 rating decision. Most recently, the RO continued the Veteran's 20 percent evaluation for residuals of a right ankle fracture under Diagnostic Code 5271 in the July 2009 rating decision on appeal. The Veteran submitted a statement in support of his claim dated November 2009 in which he indicated that his service-connected right ankle disability had gotten worse. In support of this contention, the Veteran stated that he was prescribed Tramadol at the VA clinic in Ocala, Florida to be taken three times per day for pain. Unfortunately, none of the VA records are currently associated with the claims file. On remand, therefore, the RO/AMC should attempt to obtain all VA medical records pertaining to the Veteran. In addition, the Veteran should be contacted and asked to identify any and all VA and non-VA sources of treatment for his service-connected right ankle disability that are not already of record. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 § C.F.R. § 3.159 (2010). This duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In light of the Board's decision to remand the Veteran's claim in an attempt to obtain outstanding treatment records and the Veteran's statement of November 2009, the Veteran should also be afforded a new VA examination to assess the nature and severity of his service-connected right ankle disability. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any and all VA and non-VA sources of treatment for his service-connected residuals of his right ankle fracture that are not already of record. In particular, the Veteran should provide, or authorize VA to obtain, any such pertinent private records, which are not already of record. All efforts to obtain these records should be fully documented. If these records do not exist or cannot be obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2010). 2. Associate with the claims file relevant VA medical treatment records pertaining to the Veteran from the Ocala CBOC, and any other VA records identified by the Veteran in response to Step One. If these records do not exist or cannot be obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2010). 3. After all of the above development is completed, schedule the Veteran for a VA examination to assess the nature and severity of his service-connected right ankle fracture residuals. The examiner should note in the examination report that the claims file has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner is asked to provide a complete assessment of the severity of the Veteran's service-connected right ankle disability, to include a discussion of the ranges of motion of the appropriate joint(s). The examiner is also asked to state whether the Veteran's service-connected bilateral knee disability is manifested by ankylosis and, if so, the degree of ankylosis. Additionally, the examiner is asked to indicate whether the Veteran's service-connected right ankle disability is manifested by weakened movement, excess fatigability, incoordination, or pain, and if so, whether there is an additional loss of range of motion as a result of these symptoms. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain, or during flare-ups. The examiner must provide a complete rationale for any stated opinion. 4. After the requested examination has been completed, the examination report should be reviewed to ensure that it is in complete compliance with the directives of this remand. The examination report should be returned to the examiner if it is deficient in any manner. 5. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response before the case is returned to the Board. 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 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). _________________________________________________ S.S. TOTH 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).