Citation Nr: 1312141 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 10-42 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of left ankle injury. 2. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of right ankle injury. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from June 1984 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran appeared and testified at a Board video conference hearing held before the undersigned Veterans Law Judge in September 2011. A copy of the transcript of this hearing has been associated with the claims file. At the Veteran's hearing in September 2011, he indicated he desired to appeal the rating for his service-connected bilateral pes planus. The Board notes that, in the January 2010, a 30 percent disability rating was awarded effective August 14, 2009, for the Veteran's service-connected bilateral pes planus; however, he did not express disagreement with that decision within one year of its issuance, and it is, therefore, final. Consequently, the Board takes the Veteran's statement at the hearing to be a new claim for an increased disability rating for his service-connected bilateral pes planus. That issue having been raised by the record but not adjudicated by the RO, the Board does not have jurisdiction over it. That issue is, therefore, referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, the Board finds that remand is necessary to obtain a new VA examination to determine the current severity of the Veteran's bilateral ankle disabilities because the prior VA examination conducted in July 2010 is not adequate for rating purposes. In providing range of motion measurements for the Veteran's bilateral ankles, the VA examiner stated that the Veteran's ankles "dorsiflex, but lack 10 degrees to neutral. Plantar flexion is 10-20. Both are active and passive. Inversion bilaterally is 0-10 with pain and eversion is 0-4 with pain bilaterally active and passively." The Board finds confusing the Veteran's measurements given for dorsiflexion and plantar flexion. The Board notes that normal dorsiflexion of the ankle is from 0 to 20 degrees and normal plantar flexion of the ankle is from 0 to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. The phrase "dorsiflex, but lack 10 degrees to neutral" is confusing because it sounds like the Veteran's ankles are not able to be in neutral position (i.e., at zero degrees). This statement is even more confusing when read with the statement that plantar flexion was 10 to 20 degrees, which makes it sound like the Veteran was not able to bring his ankles to neutral from plantar flexion, which is the opposite direction from dorsiflexion. As the Board is unable to make a reasonable interpretation of the examiner's findings, the examination is inadequate. Consequently, a new examination is required to obtain range of motion measurements that are stated in a manner that the Board may readily understand the severity of the Veteran's range of motion of his bilateral ankles. Since it is necessary to remand this case for an examination, the Board concludes that further efforts must be made to obtain any additional VA treatment records as the last treatment record in the claims file is from February 2010 and the Veteran testified at the September 2011 hearing that he continues to be treated at the VA Medical Center. Accordingly, the case is REMANDED for the following action: 1. Associate with the Veteran's claims file medical records from the VA Medical Center in Columbia, South Carolina, for treatment related to the Veteran's bilateral ankle disabilities from March 2010 to the present. All efforts to obtain VA records should be fully documented. 2. When the above development has been accomplished and any available evidence has been associated with the claims file, the Veteran should be scheduled for a VA joints examination. The claims file must be provided to the examiner for review in conjunction with the examination. The examiner should indicate in the report that the claims file was reviewed, and provide a complete rationale for all conclusions and opinions. All necessary tests and studies should be conducted in order to ascertain the severity of the Veteran's service-connected bilateral ankle disabilities. The examiner should elicit information as to the frequency, duration, and severity of any associated symptomatology, and loss of function in daily activities, including work and physical activity. The examiner should determine the limitation of motion, if any, of the Veteran's bilateral ankles, set forth in a clear and understandable manner, and discuss whether there is pain on movement, swelling, tenderness, deformity or atrophy of disuse. The examiner should also determine whether there is any evidence of ankylosis, ligamentous laxity or other impairment of the bilateral ankle joints. Repetitive motion testing should be conducted, and the examiner should comment on whether there is additional functional loss due to weakness, fatigability, incoordination, or pain on movement. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. To the extent possible, any additional functional loss should be specified in terms of the resulting decreases in range of motion. 3. Thereafter, the Veteran's claims should be readjudicated. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board 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).