Citation Nr: 1237196 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 07-00 226A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for status post left ankle strain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran had National Guard service from June 3, 1978, to February 2, 1986. On February 3, 1986, the Veteran entered into Active Guard/Reserve status from that date until his discharge on May 31, 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). (Due to the location of the Veteran's residence, the jurisdiction of this appeal remains with the RO in St. Paul, Minnesota.) In December 2010, the Board remanded this issue to the agency of original jurisdiction (AOJ) for further evidentiary development. The case has since been returned to the Board for further appellate action. 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 Regrettably, a remand is necessary for further development of the Veteran's claim. The Board's December 2010 remand directed, in pertinent part, that the Veteran be scheduled for a VA examination of his left ankle. The examiner was asked to state whether any limitation of motion of the ankle joint was better characterized as "moderate" or "marked." The examiner was also asked to comment as to the presence of ankylosis in plantar flexion or dorsiflexion; ankylosis of the subastralagar or tarsal joint; malunion of the os calcis or astragalus; and whether there was evidence of astragalectomy. In addition, the examiner was asked to address the impact of the Veteran's service-connected left ankle disability on his ability to work. The Veteran underwent the requested examination in November 2011. Although limitation of motion was shown on physical examination, the examiner did not comment on whether it was better characterized as "moderate" or "marked." In addition, he failed to comment on any ankylosis, malunion of the os calcis or astralagus, or evidence of astragalectomy, nor did he discuss the impact of the Veteran's service-connected left ankle disability on his ability to work. Consequently, a remand of the Veteran's appeal is necessary so that he may be provided with another VA examination of his left ankle. See Stegall v. West, 11 Vet. App. 268 (1998) (another remand is necessary due to the RO's failure to follow the Board's directives in a prior remand). The VA examiner did note that the Veteran had sustained a distal fibula fracture in his left ankle in August 2009, after stepping in a hole. When asked about the injury, the Veteran stated that he simply stepped in the hole, and did not indicate that any symptoms of his service-connected left ankle disability caused his injury. As a result of that injury, the Veteran underwent an open reduction internal fixation (ORIF) procedure on his left ankle. The VA examiner stated that "most" of the limitation of motion of the Veteran's left ankle was the result of this nonservice-connected injury. However, the examiner did not attempt to quantify the limitation caused by the service-connected status post left ankle strain and the nonservice-connected distal fibula fracture. The Board is precluded from differentiating between symptoms attributed to a nonservice-connected disability and those symptoms related to a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet.App. 181, 182 (1998). Therefore, to the extent that it is possible, the examiner should differentiate between any left ankle symptomatology attributed to the Veteran's service-connected status post left ankle strain as opposed to any symptomatology associated with the nonservice-connected left ankle fracture. The December 2010 remand also directed that the Veteran be asked to provide records, or identifying information and authorization to obtain records, from individuals who have treated him for his left ankle disability since September 2009. Although the Veteran did not respond, the Board notes that post-service treatment records from the Minneapolis VA Medical Center (VAMC), dated until September 2009, are of record. It appears that the Veteran received regular treatment at this facility. Thus, a search for updated treatment records should be accomplished on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the Minneapolis VAMC and request that all records of the Veteran's treatment at that facility since September 2009 be provided for inclusion with the claims folder. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Then, after the aforementioned development has been completed, accord the Veteran an appropriate VA examination to determine the current level of severity of his service-connected left ankle disability. The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner should discuss the symptoms associated with the Veteran's service-connected status post left ankle strain, without regard to any symptoms that are the result of the nonservice-connected distal fibula fracture the Veteran sustained in August 2009. All pertinent pathology associated with the service-connected status post left ankle strain should be annotated in the report. If the physician finds that it is not possible to separate the effects of the Veteran's service-connected status post left ankle strain from the effects of the post-service left distal fibula fracture, all pertinent pathology must be attributed to the service-connected status post left ankle strain. The physician must explain in detail the rationale for all conclusions reached. After ascertaining the manifestations associated with the Veteran's service-connected left ankle disability, the examiner must conduct range of motion testing for the left ankle (expressed in degrees, with standard ranges provided for comparison purposes). For all limitation of motion noted, the examiner must indicate whether it is best described as "moderate" or "marked." The examiner must also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner must indicate the point at which pain begins. The examiner must indicate whether there is ankylosis present, and if so, whether such is at plantar flexion less than 30 degrees; plantar flexion between 30 and 40 degrees, or dorsiflexion between 0 and 10 degrees; or in plantar flexion at more than 40 degrees, or dorsiflexion at more than 10 degrees with abduction, adduction, inversion or eversion deformity. The examiner must indicate whether the Veteran has ankylosis of the subastralagar or tarsal joint (either in poor weight-bearing position, or in good weight-bearing position) or malunion of the os calcis or astralagus, and if so, whether it is best described as moderate or marked. The examiner must indicate whether there is any evidence of astragalectomy. The examiner must address the impact of the Veteran's service-connected left ankle disability on his ability to work. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. If the examiner is unable to render a requested opinion without resort to pure speculation, he or she must so state and a complete rationale for such a finding must be provided. 3. After the requested examination has been completed, the report should be reviewed to ensure that it is in compliance with the directives of this Remand. If a report is deficient in any manner, the AOJ should return it to the examiner for corrective action. 4. Thereafter, readjudicate the issue. If the claim remains denied, the Veteran and his representative must be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board for appellate review. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that 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 remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ REBECCA N. POULSON Acting 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 Court. 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) (2012).