Citation Nr: 1311754 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 08-01 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a rating in excess of 20 percent for postoperative residuals of a left ankle fracture with traumatic arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1983 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a personal hearing before a decision review officer at the RO in December 2008. A copy of the transcript of that hearing is of record. The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). The Board remanded the case for additional development in October 2011. 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 on his part. REMAND Although the issue on appeal has been previously remanded, the Board finds that further development is required for an adequate determination. A remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). In its October 2011 remand the Board requested that the Veteran be scheduled for a clinical examination to evaluate his service-connected left ankle disability. It was noted that, although his 20 percent rating was the maximum schedular rating under 38 C.F.R. § 4.71a, Diagnostic Code 5271, higher or separate ratings were possible under Diagnostic Codes 5270 and 5284. The Veteran, it was noted, had reported that his left ankle disability had increased in severity and that his disability resulted in the loss of work at least one day per week. A review of the record shows the Veteran was notified of a scheduled VA examination by correspondence dated October 21, 2011, but that he failed to report. There is no indication in the available record that his failure to appear was with good cause. VA regulations provide that when a claimant fails to report for a scheduled medical examination, without good cause, a claim for an increased rating shall be denied without review of the evidence. See 38 C.F.R. § 3.655(b) (2012). The Veteran, however, was improperly informed in a June 2012 supplemental statement of the case that although he failed to report for the scheduled VA examination that his claim would be rated based upon the evidence of record. The available evidence in this case is insufficient for an adequate determination of the Veteran's claim for a rating in excess of 20 percent. The Board notes that VA treatment records added to the record since the October 2011 remand included reports indicating the Veteran sustained an additional left ankle injury and fractures to left second, third, and fourth toes, but that the information provided did not include an evaluation of the service-connected left ankle disability. Therefore, additional development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. Updated VA treatment records, covering the period from May 9, 2012, to the present, should be obtained and added to the claims file. 2. Following completion of the above, schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected postoperative residuals of a left ankle fracture with traumatic arthritis. All indicated tests and studies are to be performed. Upon examination and review of the record, the examiner should describe all symptomatology due to the service-connected left ankle disorder and to the extent possible distinguish any such symptoms from the injuries incurred in a September 2011 motorcycle accident. The examiner must specifically discuss whether there is ankylosis of the left ankle and/or whether a manifest left foot disability was incurred as a result of an injury in service or is proximately due to the service-connected disability. The examiner should separately discuss the extent of any left ankle incoordination, weakened movement, and excess fatigability on use; objective evidence of pain or functional loss due to pain; and specific functional impairment due to pain. Also, the examiner should express an opinion as to whether there would be additional limits on functional ability on repeated use or during any flare-ups. The examiner should also express an opinion as to the impact of the Veteran's service-connected left ankle disability on his employability and whether the ankle disability produces repeated visits to the doctor and/or hospitalization. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the claims folder. The Veteran is advised that a failure to report for a scheduled VA examination, including any scheduled tests or studies, without good cause will result in the denial his claim. 4. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with appropriate consideration of all the evidence of record. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ BARBARA B. COPELAND 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).