Citation Nr: 1306299 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-33 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected right foot fracture residuals of 2nd and 3rd metatarsal bones with exostosis of the 2nd metatarsal. ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from December 1982 to October 1989. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The claim is now under the jurisdiction of the RO located in New Orleans, Louisiana. This case was previously before the Board in July 2012, at which time it was remanded for further development of the evidence. 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 is claiming that his service-connected right foot fracture residuals of the 2nd and 3rd metatarsal bones with exostosis of the 2nd metatarsal warrant a rating in excess of the currently-assigned 10 percent disability rating. The Board determines that a remand is necessary so that the Veteran can be scheduled for another VA orthopedic examination. As noted by the Board in its July 2012 remand, the Veteran claimed as part of his September 2009 substantive appeal that his right foot disability was "getting worse." He added that he was provided shots [for pain relief] every four months. Of record is a January 2009 VA informed consent form, showing that the Veteran consented to a right foot injection. He was instructed to return to the clinic in four months. Review of VA outpatient medical records in Virtual VA (an electronic paperless claims processing system) dated from August 2009 to December 2012 does not show that the Veteran was afforded another injection for pain relief purposes up to December 2012. A December 2010 treatment note did include, among the Veteran's active problems, traumatic arthropathy involving the ankle and foot. Also as part of his substantive appeal, he described his pain as "severe," adding that he had difficulty standing or walking. A December 2012 VA outpatient record shows that a foot X-ray was ordered, and another December 2012 VA outpatient record notes that the Veteran needed a podiatry consult for a broken foot. Records dated subsequent to this are not included in the Veteran's claims folder or in Virtual VA. It is important to note that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, all VA medical treatment records dated since December 2012 should be associated with the claims file. 38 U.S.C. § 5103A (West 2002). As also noted by the Board in July 2012, the Veteran was last afforded a VA examination to evaluate the severity of his service-connected right foot disability in April 2008. This is almost five years ago. Generally, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). While mindful that the Veteran failed to report for a VA examination which was scheduled to take place in August 2012, in February 2013 he informed the Board that "I will meet the next appointment." Thus, as this case needs to be remanded anyway to seek to associate contemporaneous VA medical records with the evidence, the most appropriate course is to order a current VA examination to determine the manifestations and severity of the Veteran's right foot disability. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any VA treatment records, dating from December 2012 to the present. All obtained records should be associated with the Veteran's claims file or within Virtual VA. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 2. After obtaining the above evidence, to the extent available, the RO/AMC should schedule the Veteran for a VA examination to determine the severity of the service-connected right foot fracture residuals of 2nd and 3rd metatarsal bones with exostosis of the 2nd metatarsal. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should elicit a complete history, the pertinent details of which should be included in the examination report. Following examination of the Veteran and review of the claims file, the examiner should identify all currently present manifestations of the service-connected right foot fracture residuals of 2nd and 3rd metatarsal bones with exostosis. The examiner should specifically indicate whether associated foot disability is moderate, moderately severe, or severe. The examiner should identify any objective evidence of pain and assess the extent of any pain. The extent of any incoordination, weakened movement and excess fatigability on use should be described. To the extent possible, the functional impairment due to incoordination, weakened movement and excess fatigability should be assessed in terms of additional degrees of limitation of motion. Stated differently, the examiner should indicate the point at which pain or any other factor limits motion. A discussion of the complete rationale for all opinions expressed should be included in the examination report. 3. The Veteran is hereby notified that it is his responsibility to report for a scheduled VA examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Thereafter, the RO/AMC must review the claims folder and ensure that the foregoing development actions, as well as any other indicated development, have been conducted and completed in full. If the response is deficient in any manner, the RO/AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the RO/AMC should readjudicate the Veteran's claim. If the benefit sought is not granted in full, the Veteran should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also again advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The appellant 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 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). _________________________________________________ MILO H. HAWLEY 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).