Citation Nr: 1325524 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 07-06 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for posttraumatic degenerative joint disease of the right ankle. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1990 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Following the perfection of the appeal, the Veteran presented testimony before the undersigned Veterans Law Judge during a videoconference hearing in September 2012. A transcript of that hearing was prepared and has been included in the claims folder for review. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran was last afforded an examination for his posttraumatic degenerative joint disease of the right ankle in August 2008. In a September 2012 videoconference hearing, the Veteran indicated that his right ankle is worse than when it was examined in August 2008. The United States Court of Appeals for Veterans Claims (Court) has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As the current level of disability is at issue, a contemporaneous examination of the Veteran's posttraumatic degenerative joint disease of the right ankle is necessary to accurately assess his disability picture. In addition, the record reflects that the Veteran has continued to receive treatment from the VA Medical Center (VAMC) and his private physician. As this matter is being returned for additional development, any ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following actions: 1. Request the Veteran identify any outstanding private treatment records relating to his right ankle disability. Obtain all outstanding VA and identified private treatment records relating to his right ankle disorder. All efforts to obtain the additional evidence must be documented in the claims folder. If the search for such records has negative results, documentation to that effect should be included in the claims files. If the RO is unable to secure any outstanding records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A (b) (2) (West 2002); 38 C.F.R. § 3.159(e) (1) (2012). 2. Arrange for the Veteran to be examined by an appropriate examiner, who should comment on the severity of the Veteran's posttraumatic degenerative joint disease of the right ankle. The claims folder and a copy of this remand are to be made available to the examiner to review prior to the examination. Any indicated tests and studies should be conducted and all findings should be reported in detail. All indicated studies, including range of motion studies in degrees should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. To the extent possible, the examiner should assess the degree of severity of any pain. Tests of joint movement against varying resistance should be performed. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also specifically report at what point any pain begins, and at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups. The examiner should comment on any associated neurological abnormality. The examiner should also address the impact of the Veteran's disorder on his daily activities and employment. The supporting rationale for all opinions expressed must be provided. 3. Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The RO/AMC is reminded that it must make a determination as to whether an extraschedular evaluation for the Veteran's service-connected right ankle disability may be assigned. The RO/AMC must fully discuss why, or why not, it is sending the claim to the Director, VA Compensation and Pension. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Veteran 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). _________________________________________________ LANA K. JENG Acting 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).