Citation Nr: 1318054 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 08-06 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a disability rating greater than 20 percent for arthritis due to trauma, limited motion, residuals of trauma right ankle. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from November 1946 to October 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, in which the RO denied the Veteran's claim for a disability rating greater than 20 percent for arthritis due to trauma, limited motion, residuals of trauma right ankle. The Veteran testified before the undersigned Veterans Law Judge with regard to his claim in March 2013. A transcript of this proceeding has been associated with the claims file. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a total disability rating based on individual unemployability (TDIU) claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. In this case, the Veteran has made several allegations that he is having difficulty working as a real estate broker given his inability to walk for long periods of time. However, the claim for a TDIU had not been raised by the evidence of record as, during the March 2013 Travel Board hearing, the Veteran specifically reported that he was, in fact, employed. As such, a claim for a TDIU has not been reasonably raised by the record. During the March 2013 Travel Board hearing the Veteran raised the issue of entitlement to neuropathy of the lower extremities due to the Veteran's service-connected disorders. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Thus, this issue is referred to the AOJ for appropriate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that VA treatment records dated from October 2011 through January 2012, a March 2013 rating decision denying special monthly pension, and a copy of the March 2013 Travel Board hearing. The remainder of these records are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 In an October 2012 VA Form 646, Statement of Accredited Representative in Appealed Case, the Veteran's representative wrote that the Veteran's right ankle disorder was currently rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5271, the maximum rating under DC 5271. The Veteran's representative suggested that application of DC 5262 would be more beneficial to the Veteran as DC 5262 allows a 30 percent maximum rating. During the March 2013 Travel Board hearing the Veteran's representative reiterated the argument that DC 5262 should be applied for the Veteran's service-connected right ankle disorder. The Veteran's representative also wrote that the most recent VA contract examination, dated in October 2011, is inadequate as this examination report did not address whether there was impairment of the tibia and fibula and only addressed the Veteran's arthritis. A review of the October 2011 VA contract examination is negative for any discussion regarding the tibia and/or fibula. Also, during the March 2013 Travel Board hearing, the Veteran reported that his right ankle disorder had increased in severity since the October 2011 VA contract examination. Specifically, the Veteran reported that he had more difficulty with walking since October 2011. Furthermore, during the March 2013 Travel Board hearing, the Veteran presented a February 2013 statement from a VA physical therapist wherein she noted that the Veteran had 0 degrees of dorsiflexion and 5 degrees of plantar flexion which is much worse when compared to the October 2011 VA contract examination findings of 15 degrees of dorsiflexion and 40 degrees of plantar flexion. On remand, the Veteran should be afforded another VA examination whereby the examiner addresses whether there is any impairment of the tibia and/or fibula and addresses the Veteran's recent allegations of increased difficulty walking and decreased right ankle range of motion since the October 2011 VA contract examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Finally, a review of the claims file in addition to the Virtual VA file shows VA treatment records dated from July 2004 through January 2012 but is negative for treatment records after January 2012. On remand, the RO should attempt to obtain any outstanding VA treatment records dated from January 2012 to the present. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records from January 2012 to the present. If these records are unobtainable, a negative reply must be noted in writing and associated with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected arthritis due to trauma, limited motion, residuals of trauma right ankle. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner is asked to identify all manifestations of service-connected right ankle disorder currently experienced by the Veteran. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his right ankle disorder, the examiner should state whether the Veteran's service-connected right ankle disorder is manifested by impairment of the tibia and/or fibula to include nonunion with marked knee or ankle disability. Furthermore, the examiner should comment on the Veteran's allegations of an increase in severity of the right ankle disorder since the October 2011 VA contract examination, specifically as it pertained to walking as well as the February 2013 statement from a VA physical therapist wherein she noted that the Veteran had 0 degrees of dorsiflexion and 5 degrees of plantar flexion which is much worse when compared to the October 2011 VA contract examination findings of 15 degrees of dorsiflexion and 40 degrees of plantar flexion. A complete rationale shall be provided for any opinion expressed. If an opinion cannot be made without resort to speculation the examiner must so state and explain why such cannot be made. 3. The Veteran should be given adequate notice of the requested examination, which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's right ankle disorder rating claim, including a scheduler and extraschedular rating, on the merits. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MARJORIE A. AUER 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).