Citation Nr: 1315635 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 09-18 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for service-connected status post left ankle fracture. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2003 to January 2008 and from September 2009 to February 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Original jurisdiction currently resides at the RO in St. Louis, Missouri. In March 2013, the Veteran presented sworn testimony at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND A review of the record shows that the Veteran was last afforded a VA examination in November 2007 as to his service-connected left ankle disability. He essentially contends that his service-connected disability has since increased in severity. See the March 2013 Board hearing transcript, page 2. Specifically, the Veteran testified at the March 2013 Board hearing that he has increased weakness, decreased endurance, and decreased range of motion. He also stated that his left ankle turns more on him. In light of the foregoing, the Board finds that a contemporaneous VA examination is warranted to ascertain the current severity of the Veteran's service-connected left ankle disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997) [a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination]; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) [Court determined that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating]; Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) [VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse]. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his service-connected status post left ankle fracture. The claims folder is to be provided to the examiner for review in conjunction with the examination. The examiner's report should fully set forth all current complaints and pertinent clinical findings, and should describe in detail the presence or absence and the extent of any functional loss due to the Veteran's service-connected left ankle disability as well as any neurological and orthopedic manifestations. In particular, the examiner should indicate the point during range of motion testing that motion is limited by pain as well as the impact of weight-bearing on the Veteran's range of motion. Consideration should be given to any loss due to reduced or excessive excursion, or due to decreased strength, speed, or endurance, as well as any functional loss due to absence of necessary structures, deformity, adhesion, or defective innervation. In particular, the examiner should comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner's inquiry in this regard should not be limited to muscles or nerves, but should include all structures pertinent to movement of the joint. It is important for the examiner's report to include a description of the above factors that pertain to functional loss due to the left ankle disability that develops on use. Based on current examination of the Veteran as well as review of the evidence of record to include postservice treatment reports and prior physical examinations of the Veteran, the examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. Any report prepared must be typed. 2. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence received, and any evidence not received, and all applicable laws and regulations considered pertinent to the issue currently on appeal. A reasonable period of time should be allowed for response. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ Bethany L. Buck 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).