Citation Nr: 1305403 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 09-44 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for a left ankle disability, currently rated at 20 percent. 2. Entitlement to service connection for a right ankle disorder, to include as secondary to the service-connected right ankle disability. REPRESENTATION Appellant represented by: James Brakewood, Jr. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from September 1999 to December 2003. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of April 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia 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 With regard to the claim of increased rating, a new examination must be conducted based on the evidence of surgery since the February 2009 VA examination, which is the most recent examination associated with the file. See Littke v. Derwinski, 1 Vet. App. 90 (1990). With regard to the claim of service connection, a VA examination should be conducted and opinion obtained to determine whether the Veteran has a right ankle disorder which is secondary to the left ankle disability. See 38 U.S.C.A. § 5103A(d). Accordingly, the case is REMANDED for the following action: 1. Ensure that all relevant VA treatment records are associated with the file. 2. Schedule the Veteran for an appropriate examination to determine the nature and severity of the left ankle disability. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. The examiner should address all symptoms and functional impairment, to include any occupational impairment, associated with the left ankle disability. The examiner is to specify whether the left ankle disability results in, or approximates, ankylosis in plantar flexion between 30 and 40 degrees or at more than 40 degrees, ankylosis in dorsiflexion between 0 and 10 degrees or at more than 10 degrees, or ankylosis with abduction, adduction, inversion, or eversion deformity. The examiner is to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Schedule the Veteran for an examination to determine the nature and likely etiology of the reported right ankle disorder. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. The examiner should provide an explanation for any opinion provided. The examiner should specify whether the Veteran has a right ankle disorder. For any diagnosed disorder, the examiner should address the following: (a) Is it at least as likely as not (50 percent or higher degree of probability) that any current right ankle disorder was incurred in or aggravated by service? (b) If the answer to (a) is no, is it at least as likely as not (50 percent or higher degree of probability) that any current right ankle disorder was caused by his left ankle disability, to include an altered gait caused by the left ankle disability. (c) If the answer to (a) and (b) are no, is it at least as likely as not (50 percent or higher degree of probability) that the any current right ankle disorder was aggravated by the left ankle disability. The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of right knee disability present (i.e., a baseline) before the onset of the aggravation. 4. Thereafter, readjudicate the appellant's claims with consideration of all the evidence associated with the record after the October 2009 statement of the case. If the benefits sought on appeal remain denied, the appellant 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 law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. 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). 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).