Citation Nr: 1330949 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-00 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable rating for degenerative joint disease status post right ankle surgery prior to June 6, 2011, and to a rating in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from October 1986 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the Veteran has complained of numbness of the right toes and foot. In June 2009 a VA examiner opined that the Veteran's right foot numbness complaints were unrelated to the Veteran's right ankle disability. The Board further notes that the Veteran has been granted service connection and a 10 percent rating for her right foot neuropathy, and she has not appealed the 10 percent rating assigned for that disability. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. 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 April 2008 rating decision on appeal granted the Veteran service connection and a noncompensable rating for degenerative joint disease status post right ankle surgery. Service connection was granted effective from April 1, 2008, the day after the Veteran's discharge from service. By rating action in December 2012, the RO granted the Veteran an increased staged rating of 10 percent for her right ankle degenerative joint disease, effective from June 6, 2011. The Veteran asserts that her right ankle condition warrants higher ratings. The Veteran was provided a VA examination of the right ankle in June 2011. At the examination the Veteran provided the examiner emergency room discharge treatment records showing an ankle injury in May 2010. Although the VA examiner did not specify that it was a right ankle injury, the fact that the Veteran brought these records to her examination for a right ankle injury would indicate that it was likely for treatment of the right ankle. These emergency room treatment records are not of record and should be obtained. See 38 C.F.R. § 3.159(c). The Veteran's claims file contains VA treatment records dated from November 2007 to November 18, 2008. The Veteran's virtual electronic record contains VA treatment records dated from February 1, 2012 to September 24, 2012. The record does not contain the remainder of the Veteran's VA treatment records, copies of these records should be obtained. See 38 C.F.R. § 3.159(c)(2). The Veteran submitted a May 2008 letter from a private podiatrist who performed her right ankle surgery a year prior her discharge from service. In this letter the podiatrist stated that she would be glad to send copies of her records of the Veteran's treatment if a release was provided. The record does not indicate that the Veteran has been asked to provide a release for this podiatrist who treated her right ankle. The Board notes that the records related to the right ankle surgery are not of record and it is unclear from the record if the Veteran received additional treatment from this podiatrist after discharge from service. The proper forms should be provided to the Veteran so that she can provide such a release to VA. See 38 C.F.R. § 3.159(c)(1). Lastly, the duty to assist includes providing a VA examination when necessary. In this case, given the evidence of treatment after the last VA examination in 2011, the Board finds that additional examination must be conducted to adequately evaluate the current severity of the disability. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records dated from November 19, 2008 to January 31, 2012, and from September 25, 2012 to present. Associate these records with the Veteran's claims file. 2. If the Veteran's May 2010 emergency room treatment for an ankle injury was for a right ankle injury, and if the records of such treatment have not been obtained via paragraph one above, request that the Veteran supply a signed authorization form so that records of such emergency room treatment may be obtained. All records/responses received should be associated with the claims file. 3. Provide the Veteran an authorization form and request that she fill it out so that her right ankle treatment records may be requested from Dr. A.L., the private podiatrist who performed her right ankle surgery in 2007. All records/responses received should be associated with the claims file. 4. Provide the Veteran authorization forms and request that she fill them out and return them for any other medical providers who have treated her for her right ankle disorder, if records of such treatment have not already been submitted. All records/responses received should be associated with the claims file. 5. If, after making reasonable efforts to obtain the records described in paragraphs 2, 3 and 4 above, the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that she is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 6. Schedule the Veteran for a VA examination to determine the nature and severity of her service-connected ankle disability. The claims file must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail, to include the extent of any functional loss found. 7. When the above actions have been completed, readjudicate the issue on appeal. If the appeal remains denied, the Veteran and her representative should be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appellant 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). _________________________________________________ BETHANY L. BUCK 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).