Citation Nr: 1320511 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-22 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a rating in excess of 20 percent for a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to July 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran later testified before the undersigned Veterans Law Judge (VLJ) at a hearing in Washington, D.C. in October 2012. A transcript of the hearing is associated with the claims folder. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran was initially granted service connection for his ankle disability in a June 1977 rating decision. He was assigned a noncompensable disability rating for instability of the left ankle, effective October 15, 1976. The disability rating was increased to 10 percent upon a rating decision in February 1983, effective from March 10, 1982. In a September 1998 rating decision, the disability rating was increased to 20 percent, effective October 26, 1993. This appeal ensued following the denial of the Veteran's claim for a rating in excess of 20 percent in May 2008. The Veteran was afforded a VA examination in conjunction with his increased rating claim in May 2010. Based on the examination results, the RO continued the Veteran's rating disability at 20 percent for the left ankle, as noted in the June 2010 supplemental statement of the case (SSOC). The Veteran provided testimony in support of his claim in October 2012. He reported that he walked with a slight limp and experienced some numbness and atrophy of the calf muscle as a result of his left ankle disability. Hearing (hrg.) transcript (tr.) at page (pg.) 3. He had difficulty walking and was unable to exercise. He often wore a brace and used a cane. Hrg. tr. at pg 5. He felt that his left ankle condition had definitely worsened since his last VA examination in May 2010. Hrg. tr. at pg. 6. The Board observes that the Veteran was indeed last afforded a VA examination of his service-connected left ankle disability in May 2010. Consequently, more than three years have passed since his service-connected disability was last evaluated. While the duty to assist does not require that a claim be remanded for VA examination solely because of the passage of time, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the prior examination. See VAOPGCPREC 11-95 (1995). Accordingly, in this case, the Board believes that a current evaluation of the Veteran's service-connected left ankle disability is required in order to obtain a complete disability picture and to appropriately adjudicate the merits of his increased rating claim, as the contention has been made that his disability has been increasing in severity. See 38 C.F.R. § 3.159 (2012); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Therefore, the Board finds that this case must be remanded in order for the Veteran to be afforded a new and contemporaneous VA examination of his left ankle to assess the current severity of his service-connected left ankle instability. As this case is being remanded for the foregoing reasons, all relevant private and/or VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide the names and addresses of all physicians/medical care providers that have provided treatment for his service-connected left ankle disability. Make arrangement to obtain complete copies of treatment records from any identified providers that are not already of record, to include the VA facility in Los Angeles, California, where the Veteran has testified that he continues to be treated. (Hrg. tr. at pg. 5.) 2. Thereafter, schedule the Veteran for an appropriate VA examination of his left ankle. The claims file and a complete copy of this REMAND should be reviewed in association with the examination. The examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should note the range of motion (ROM) measurements for the Veteran's left ankle, including dorsiflexion and plantar flexion. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted. Whether there is likely to be additional ROM loss due to any of the following should additionally be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. If feasible, any limitation should be described in terms of additional degrees of limitation of motion (LOM). The examiner should specifically provide an opinion as to whether there is limited motion which is marked, moderate, or to a lesser degree. The examiner should indicate if the Veteran has ankylosis of the left ankle, and, if so, describe the nature of the ankylosis. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when the left ankle is used repeatedly. All limitation of function must be identified. If there is no pain, no LOM, and/or no limitation of function, such facts must be noted in the examination report. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Finally, readjudicate the Veteran's increased rating claim on appeal. If his claim is not granted in full, provide the Veteran and his representative with a SSOC, and after they have had an adequate opportunity to respond, return these issues to the Board for further 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). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).