Citation Nr: 1300408 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 07-22 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for residuals of injury to the left foot and ankle, evaluated as 10 percent disabling prior to February 28, 2012, and evaluated as 20 percent disabling from February 28, 2012, WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from February 1977 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Columbia, South Carolina. During the pendency of the Veteran's appeal, the Appeals Management Center (AMC) granted an evaluation of 20 percent for the disability at issue, effective from February 28, 2012. In September 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in February 2012 and was remanded for further development 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 The Veteran underwent a VA examination in February 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examination report is inadequate for rating purposes; thus, a supplemental opinion is warranted. The February 2012 VA examination report reflects that the Veteran has bilateral pes planus/hallux valgus, bilateral arthritis, and bilateral ankylosis of the ankle. She was reported to have left ankle plantar flexion to 30 degrees, with pain beginning at 20 degrees, and 0 degrees of plantar dorsiflexion. She did not have additional limitation of range of motion of the ankle following repetitive use testing. She had less movement than normal, weakened movement, incoordination, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing. The February 2012 VA examiner opined that the ankylosis was less than 30 degrees in plantar flexion. The Board finds that the examination report has internal inconsistencies which render it inadequate. Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Thus, if the Veteran could move her ankle to 20 degrees without pain and to 30 with pain, she clearly did not have ankylosis. In addition, the examiner, in question 5 of the report, noted that the Veteran does not have hallux valgus; however, in question 14a, the examiner described the Veteran as having bilateral pes planus/hallux valgus. Finally, the examiner opined that all of the Veteran's foot symptoms "are at least as likely as not related to the natural progression of her prior service-connected left ankle and foot conditions." The Veteran is service connected for the residuals of an injury to the left foot and ankle. The examiner did not provide a sufficient rationale as to how the Veteran's pes planus (which is bilateral) or hallux valgus (also bilateral) are symptoms of, or a natural progression of, her service-connected residuals of a left foot and ankle injury. The examiner should provide a supplemental opinion, with a complete rationale, as to which of the Veteran's current symptoms of her left foot are at least as likely as not due to the residuals of a left foot and ankle injury in service, and which symptoms are due to another (or other) foot disabilities. Any rationale should include a discussion of the bilateral nature of the Veteran's complaints. The Board also notes that the record does not reflect that the Veteran has been given proper notice as to the assignment of an effective date in the event an increased rating is granted; thus, VA should provide such notice. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice as to the criteria for an assignment of an effective date in the event an increased rating is granted, in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), 2. Request the February 2012 VA examiner, to provide a supplemental opinion to a.) clarify the range of motion of the Veteran's left ankle, and if it is immobile (ankylosed), the degree at which is it permanently fixed, b.) clarify whether or not the Veteran has hallux valgus, and c) provide an opinion as to which of the Veteran's symptoms are due to her residuals of a left ankle and foot injury in service and which of the Veteran's symptoms are due to other foot disabilities. Any opinion should provide a complete rationale, to include a discussion of the bilateral nature of the Veteran's symptoms and disabilities, if any. If the February 2012 VA examiner is not available, or determines that another examination is warranted, schedule the Veteran for a VA examination with a clinician to determine the extent of her service-connected left foot and ankle injury residuals. All necessary tests should be performed. The examiner, to the extent possible, should note which of the Veteran's symptoms are due to her service connected left foot and ankle injury residuals and which symptoms are due to other foot disabilities. The claims folder should be reviewed in conjunction with such examination and the examination report should indicate that such a review was performed. 3. After undertaking any other development deemed appropriate, the RO should readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran and representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2012). _________________________________________________ ROBERT E. SULLIVAN 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) (2012).