Citation Nr: 1311583 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 03-28 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for traumatic arthritis of the right ankle (formerly characterized as a dislocated right ankle, asymptomatic). 2. Entitlement to an effective date for an award of service connection for hypertension earlier than March 14, 2011. 3. Entitlement to an effective date for an award of service connection for erectile dysfunction earlier than March 9, 2011. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from January 1988 to September 1991, including service in the Southwest Asia theater of operations during the Persian Gulf War. This appeal to the Board of Veterans' Affairs (Board) arises from an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In August 2005, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing in Washington, D.C. A transcript of that hearing is of record. In November 2005, the Board, in part, remanded the matters to the RO for additional development. In July 2010, the Board denied a rating in excess of 10 percent for traumatic arthritis of the right ankle. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Thereafter, in April 2012, the Court issued a Memorandum Decision which vacated the Board's July 2010 decision, and remanded the case. In correspondence received in May 2012, the Veteran disagreed with the effective dates of the awards for service connection for hypertension (see March 2012 rating decision) and erectile dysfunction (see May 2012 rating decision). As will be noted below, Statements of the Case (SOCs) must be issued in response to this notice of disagreement. Manlincon v. West, 12 Vet. App. 238 (1999). The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claim currently on appeal. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). An Evaluation in Excess of 10 Percent for a Right Ankle Disability The Veteran is currently in receipt of a 10 percent evaluation for traumatic arthritis of the right ankle pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271-5010. He claims that his right ankle disability is more severe than the current assigned rating as he experiences frequent pain, swelling, and instability of the ankle joint. As indicated in the Introduction, in the April 2012 Memorandum Decision, the Court vacated the Board's July 2010 decision and remanded it to the Board. The Court made reference to the Board's failure to provide adequate reasons and bases to support its finding that the Veteran is not entitled to a disability rating for his ankle in excess of 10 percent. In particular, the Court determined the Board failed to adequately discuss the findings of an August 2002 VA medical examination in light of 38 C.F.R. § 4.45, including whether the Veteran was entitled to staged ratings pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), or an extraschedular rating. Specifically, the August 2002 VA medical examination found an active range of motion in the right ankle of 50 degrees dorsiflexion; VA considers normal dorsiflexion for the ankle to be 20 degrees, which is less than half the range of motion demonstrated by the Veteran during the August 2002 examination. See 38 C.F.R. § 4.71a, Plate II (2012). While there is no specific diagnostic code that specifically considers greater-than-normal range of motion, VA must nonetheless consider whether there is "more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.)" when rating joint disabilities. 38 C.F.R. § 4.45(b). However, while the claim was pending at the Court, additional pertinent evidence was associated with the claims file, to include: (i) VA treatment records dated through May 2012; (ii) medical records from the Social Security Administration (SSA) in October 2011, and (iii) a November 2011 VA General Medical examination, which while not comprehensive, included relevant findings (i.e., range of motion testing, flare-ups, etc.), relating to the right ankle. Such relevant records have not been previously reviewed by the agency of original jurisdiction (AOJ) in connection with the claim on appeal. Additionally, neither the Veteran nor his representative waived AOJ consideration of such evidence. 38 C.F.R. § 20.1304(c). The Board thus finds that a remand is necessary in order for the AOJ to review such newly received relevant records and issue a supplemental statement of the case. 38 C.F.R. §§ 19.31, 20.1304. The Board additionally notes that the Veteran submitted a statement in February 2013 (along with a request to remand his case to the AOJ for review), indicating that his right ankle condition had worsened over the course of this appeal. He complained of daily ankle pain, swelling and weakness; he also reported wearing an ankle brace for support and using a heating pad for pain. While the Veteran was afforded a General VA examination in November 2011, which addressed some aspects of his right ankle condition, he has not been afforded a comprehensive VA examination to assess the current nature and severity of his right ankle disability since 2007, nearly six years ago. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In this case, VA treatment records dated in 2010 and 2011, show decreased range of motion of the right ankle, and consistent complaints of ankle pain, flare-ups, as well as other pertinent ankle symptomatology. In light of this objective medical evidence, as well as the Veteran's statements that his ankle condition has deteriorated during the course of this appeal, and further considering that he was last afforded a comprehensive VA examination in 2007, the Board will remand to provide a new VA examination. Additionally, while on remand, any outstanding treatment records dated from May 2012 to the present from the Columbia, South Carolina, facility should be obtained for consideration in the Veteran's appeal. Lastly, in the readjudication of the Veteran's claim on appeal, the AOJ should specifically consider, in the first instance, whether he is entitled to separate ratings under Diagnostic Code 5284, or any other potentially applicable diagnostic code, for his bilateral foot disability. Manlincon Issues Regarding the issue of the effective date for the award of service connection for hypertension, by rating decision in March 2012, the RO awarded service connection with an effective date of March 14, 2011. Correspondence received in May 2012 is taken as a notice of disagreement with regard to the effective date of the award. Therefore, issuance of a SOC is necessary with regard to the issue of the effective date of the award of service connection for hypertension. 38 C.F.R. § 19.26 (2003); Manlincon, 12, Vet. App. 238. Likewise, regarding the issue of the effective date for the award of service connection for erectile dysfunction, by rating decision in May 2012, the RO awarded service connection with an effective date of May 2012. Correspondence received in May 2012 is taken as a notice of disagreement with regard to the effective date of the award. Therefore, issuance of a SOC is necessary with regard to the issue of the effective date of the award of service connection for erectile dysfunction. 38 C.F.R. § 19.26 (2003); Manlincon, 12, Vet. App. 238. Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA treatment records from the Columbia, SC, VA facilities dated from May 2012 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed 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. Schedule the Veteran for a VA examination to determine the current nature and severity of his right ankle disability. Sufficient evaluations should be scheduled to evaluate the symptomatology. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should provide a description of the current nature and extent of the Veteran's service-connected right ankle disability. The examiner should also state whether ankylosis of the right ankle is manifested. If not, the examiner should describe the Veteran's right ankle range of motion and indicate whether there is weakened movement, excess fatigability, incoordination or pain of the right ankle joint. These determinations should be expressed, if feasible, in terms of the degree of additional range-of-motion loss that is due to any weakened movement, excess fatigability, incoordination, or pain, to include on repetitive use and on flare-ups. If possible, the VA examiner should also discuss the clinical significance of the August 2002 range of motion finding which reflected 50 degrees of dorsiflexion in the right ankle (whereas normal dorsiflexion is 20 degrees). 3. Issue a SOC on the issue of an earlier effective date of the award of service connection for hypertension. The Veteran should be given an opportunity to respond. Should the Veteran respond by submitting a timely substantive appeal, the RO/AMC should return the case to the Board for further review. 4. Issue a SOC on the issue of an earlier effective date of the award of service connection for erectile dysfunction. The Veteran should be given an opportunity to respond. Should the Veteran respond by submitting a timely substantive appeal, the RO/AMC should return the case to the Board for further review. 5. After conducting any additional development deemed necessary for the adjudication of the Veteran's increased rating claim, his claim should be readjudicated based on the entirety of the evidence. In the readjudication of the claim on appeal, the AOJ should specifically consider whether the Veteran is entitled to staged ratings pursuant to Hart v. Mansfield, 21 Vet. App. 505, 2007, particularly in light of the August 2002 VA medical examination and 38 C.F.R. § 4.45(b), as noted by the Court, and whether referral for an extraschedular rating is warranted. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ DEBORAH W. SINGLETON 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).