Citation Nr: 1311515 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-48 067 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for the service-connected right ankle fracture with right split tear of the peroneus brevis, status post ankle surgery with residual scar. 2. Entitlement to an initial compensable evaluation for the service-connected status post right hand fifth metacarpal fracture with residuals. ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from September 2007 to September 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the RO. The Veteran had previously perfected an appeal of service connection for tension headaches which was thereafter granted in full in an August 2012 RO rating decision. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Prior to adjudicating the claims for higher initial evaluations for the service-connected right ankle and right hand fifth metacarpal disabilities, additional action is necessary. See 38 C.F.R. § 19.9 (2012). There are no VA or private treatment records pertinent to the claims on appeal that are associated with the claims file. On remand, the RO should solicit from the Veteran any information regarding relevant medical records that may exist but are not associated with the claims file. After obtaining such information from the Veteran, the RO should request any identified VA records and request any private records for which the Veteran provides a records release. Additionally, the Veteran was last afforded a VA examination for her service-connected disabilities in August 2009, more than three years ago. Since that time, she indicated in a December 2009 written statement that her disabilities have worsened in severity. Additional examinations are thus necessary so that the Board can determine the current level of impairment caused by the service-connected right ankle and right hand fifth metacarpal disabilities. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to request that she identify all VA and non-VA health care providers who have treated her for her right ankle and right hand fifth metacarpal disabilities since separation from service. Based on her response, the RO should obtain copies of all treatment documents from any identified treatment source. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. 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. The Veteran also should be notified that she may submit medical evidence or treatment records in support of her claims directly to VA. 2. The RO then should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected right ankle and right hand fifth metacarpal disabilities. The examiner should be reminded that certain symptoms, including pain and weakness, are capable of lay observation and that any opinion provided on severity should contemplate such symptoms. The examiner should proceed in accordance with the instructions that follow. a. Conduct a thorough evaluation of the service-connected right ankle and right hand fifth metacarpal disabilities, including any tests deemed necessary; b. Record the Veteran's reported history of right ankle and right hand fifth metacarpal symptoms and inquiry as to whether the Veteran experiences flare-ups of such symptoms; c. Note all right ankle and right hand fifth metacarpal symptoms shown to exist, including, if appropriate, painful motion; d. Objectively confirm any functional loss caused by these symptoms, including during flare-ups and on repetitive use (consider such loss due to weakness, fatigability, incoordination, pain, including on movement of a joint, reduced or excessive excursion, decreased strength, speed, or endurance, or the absence of necessary structures, deformity, adhesion, and/or defective innervations); e. Describe the extent of any functional loss during flare-ups or after repetitive use in terms of additional loss of motion beyond that which is observed clinically; f. Specifically indicate whether the Veteran's right fifth metacarpal fracture residuals interfere with the overall function of her hand; g. Provide a detailed rationale, with specific references to the record, for any opinion expressed; and h. If an opinion cannot be expressed without resort to speculation, discuss why such is the case and whether there is additional evidence that would aid in providing such opinion. 3. The RO then should review the examination report to ensure that it includes all requested information and, if not, return it to the examiner for correction. 4. After completing all indicated development, the RO should readjudicate the claims for increase in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).