Citation Nr: 1325826 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 10-04 558 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for degenerative joint disease residual to left ankle sprain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1992 to October 1996. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2009 rating decision in which the RO continued a 10 percent rating for residuals of a left ankle sprain. In October 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in January 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals ) later that month. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that a claim for service connection for a left knee disability secondary to service-connected residuals of a left ankle sprain has been raised by the record (see VA Form 21-4138, dated June 2009), but has not been adjudicated by the RO. Therefore the Board does not have jurisdiction over this matter, and it is referred to the RO for appropriate action. REMAND The Board's review of the claims file reveals that further action in this appeal is warranted. The Veteran contends that his service-connected residuals of a left ankle sprain are more disabling than currently rated. This disability is currently rated 10 percent disabling pursuant to Diagnostic Code 5271, based on moderate limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). The Veteran was most recently afforded a VA examination in October 2010, during which range of motion testing for dorsiflexion was reported as 245 degrees. Such appears to be a typographical error, as standard range of ankle dorsiflexion is from 0 to 20 degrees. See 38 C.F.R. § 4.71, Plate II. However, because the criteria for rating the Veteran's left ankle disability are based on range of motion findings, and such findings are erroneous, this VA examination is inadequate for rating purposes. The Board notes that when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, the Board notes that a March 2010 private treatment note reflects that the Veteran told his physician that his left ankle pain "has gotten so bad he really cannot be a respiratory therapist anymore." This assertion appears to suggest worsening of the disability, as well as to raise the question of the Veteran's entitlement to a higher, extra-schedular rating. A determination of whether a claimant is entitled to an extra-schedular rating under § 3.321(b) is a three step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted. Id. Under these circumstances, the Board finds that further examination of the Veteran, with appropriate clinical findings, are needed to evaluate the Veteran's left ankle . Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and the record is complete, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In particular, the Board notes that, although the Veteran indicated receiving treatment at McLeod Home Health Physical Therapy (see VA Form 21-4142, dated February 2010), he later stated that his wife works there and that he would not be submitting a VA Form 21-4142 for that care provider (see VA Form 21-4142 dated in June 2010). The RO should request that the Veteran provide, or authorize VA to request, such treatment records. In its letter, the RO should also notify the Veteran of what evidence is needed to support a claim for a higher rating on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1). Thereafter, the RO 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. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim should further include specific consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Fenderson (cited above) is appropriate, as well as whether the procedures of 38 C.F.R. § 3.321(b)(1), for assignment of a higher, extra-schedular rating, are invoked. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record, to include records from McLeod Home Health Physical Therapy. Specifically request that the Veteran provide, or authorize VA to request, such treatment records. Also, notify the Veteran of what is needed to support a claim for a higher rating on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1). Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from any contacted entity (ies) have been associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should set forth all examination findings, along with a complete rationale for any conclusions reached, in a printed (typewritten) report. The physician should conduct range of motion studies of the left ankle (expressed in degrees), noting the exact measurements for flexion and extension, and specifically identifying any excursion of motion accompanied by pain. If pain on motion is observed, the examiner should comment on the extent of pain, and indicate at which point pain begins. The extent of any incoordination, weakened movement and excess fatigability on use should be described. In addition, the physician should indicate whether, and to what extent, the Veteran experiences likely additional functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express such functional loss in terms of additional degrees of limited motion. The examiner should also provide an assessment as to whether the Veteran's overall range of motion of the left ankle is best characterized as moderately or markedly limited, as well as provide comment as to whether there is any ankylosis of the left ankle, malunion of the os calcis or astragalus, or astragalectomy. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority, to include consideration of whether "staged rating" pursuant to Fenderson (cited above), is appropriate, as well as whether the procedures of 38 C.F.R. § 3.321(b)(1), for assignment of a higher, extra-schedular rating, are invoked. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).