Citation Nr: 1319732 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-47 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating in excess of 20 percent for the service-connected post-operative right ankle injury, traumatic arthritis, and osteoporosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from April 1964 to March 1967. This matter come before the Board of Veterans' Appeals (BVA or Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present 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 Inasmuch as the Board regrets the additional delay of this matter, a remand is required before the claim can be properly adjudicated. The Veteran was afforded a VA examination for his service-connected post-operative right ankle injury, traumatic arthritis, and osteoporosis in October 2008. In a May 2013 brief the Veteran's representative stated that the Veteran's service-connected right ankle has increased in severity since his last VA examination. When the available evidence is too old for an evaluation of the claimant's current condition VA's duty to assist includes providing him with a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Therefore, the Board finds that the Veteran should be scheduled for a new VA examination to determine the current severity of his service-connected post-operative right ankle injury, traumatic arthritis, and osteoporosis. The VA examiner should also discuss the effect of the Veteran's service-connected post-operative right ankle injury, traumatic arthritis, and osteoporosis on his employment. In the May 2013 brief the Veteran's representative asserted that the Veteran warrants an extraschedular rating for his service-connected post-operative right ankle injury, traumatic arthritis, and osteoporosis. The Veteran is currently in receipt of the maximum scheduler rating under 38 C.F.R. § 4.71a, Diagnostic Code 5271; the Board notes that a higher scheduler rating is available under Diagnostic Code 5270 for ankylosis of the ankle. At the October 2008 VA examination it was noted by the VA examiner that the Veteran was a truck driver until 2007 but was currently not employed and though he drove for years with a bad right ankle it always bothered him at the end of the day. The Board notes that in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Where the evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned commensurate with the veteran's average earning impairment due to the service-connected disorder. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Board finds that a referral of the post-operative right ankle injury, traumatic arthritis, and osteoporosis claim to the Director of the VA Compensation and Pension Service for extraschedular consideration is warranted. The authority to assign extraschedular ratings has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service, and not the Board, in the first instance. Therefore, the correct course of action for the Board, where it finds that entitlement to an extraschedular evaluation may be present, is to raise the issue and remand it for the proper procedural actions outlined in 38 C.F.R. § 3.321(b)(1). Floyd v. Brown, 9 Vet. App. 88 (1996). Prior to any VA examination, the RO should obtain any pertinent treatment records not already associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all updated VA and private treatment records. 2. The Veteran should be scheduled for a VA examination to determine the current nature and severity of his post-operative right ankle injury, traumatic arthritis, and osteoporosis. The claims file must be made available to the examiner, and the examiner should include in the examination report discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner should discuss the current nature and severity of the Veteran's post-operative right ankle injury, traumatic arthritis, and osteoporosis in terms of the applicable rating criteria; including range of motion and any pain, weakness, instability after repetitive use. The VA examiner should also discuss the effect of the Veteran's service-connected post-operative right ankle injury, traumatic arthritis, and osteoporosis on his employment. The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. The examiner's findings must be stated in terms conforming to the applicable rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). 3. Refer the Veteran's post-operative right ankle injury, traumatic arthritis, and osteoporosis to the Director of Compensation and Pension Service pursuant to the provisions of 38 C.F.R. § 3.321(b) for consideration of whether an extraschedular rating is warranted. 4. The RO should review the claims file to ensure that all the foregoing requested development is completed, and, thereafter, arrange for any additional development indicated. The RO should then readjudicate the claim on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC (Supplemental Statement of the Case) and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claim. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. The Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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).