Citation Nr: 1323363 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-00 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation higher than 10 percent disabling for left ankle degenerative joint disease, status post left fibula malleolus fracture. 2. Entitlement to an initial compensable evaluation for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to January 1988. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). 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 The Veteran appeals the denial of an initial rating higher than 10 percent for left ankle degenerative joint disease and a compensable rating for right ear hearing loss. The Veteran was last examined for the ears in March 2008 and his last examination for the left ankle was in November 2009. To ensure that the record reflects the current severity of the Veteran's disabilities, a contemporaneous examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Here, the Board finds that the 2008 and 2009 examinations are too remote to adequately address the severity of the Veteran's current disability. His representative has requested additional development. Furthermore, the record shows that the Veteran had a total left knee arthroplasty in April 2010. The Veteran has linked his left ankle symptoms to his left knee. The Board notes that the Veteran has not been examined for the ankle since his left knee arthroplasty. Pursuant to 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4)(i), VA will obtain an examination or an opinion if it is necessary to decide the claim. In view of VA's duty to assist obligations, which include the duty to obtain a VA examination or opinion when necessary to decide a claim, and based upon guidance from the Court, remand for the purpose of obtaining a VA examination(s) is required. Prior to any examination, to ensure that all due process requirements are met and that the record is complete, the RO/AMC should obtain any outstanding, relevant records pertaining to the claim on appeal. This includes VA treatment reports since 2009. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO/AMC should also provide the Veteran another opportunity to present information and/or evidence pertinent to treatment for his claims. Thereafter, the RO/AMC should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record any VA outpatient treatment records pertaining to the left ankle and hearing loss since 2009. All attempts to obtain records should be documented in the claims folder. 2. Contact the Veteran and request that he identify any private records pertaining to treatment for his hearing loss and left ankle not already of file. The Board is particularly interested in securing any medical records which would demonstrate that his disabilities have worsened. Any records obtained must be associated with the claims folder. If the RO/AMC cannot locate any identified record, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must be given an opportunity to respond. 3. Thereafter, schedule the Veteran for an appropriate VA examination to assess the current severity of his left ankle disability. Access to the claims file and Virtual VA must be made available to the examiner for review. In accordance with the latest worksheet for rating joint disorders, the examiner is to provide a detailed review of the pertinent medical history, current complaints, and nature and extent of the disability. The examiner is specifically requested to examine the Veteran's range of left ankle motion and address the impact of pain. The examination report should also include findings consistent with the criteria of DeLuca v. Brown, 8 Vet. App. 202 (1995). A complete rationale for any opinion expressed must be provided. 4. Schedule the Veteran for a VA audiology examination to determine the severity of his right ear hearing loss disability. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. 5. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 6. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 7. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO must readjudicate the issue. All applicable laws and regulations should be considered. If the benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 D. LYON 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).