Citation Nr: 1331809 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-23 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 20 percent for left ankle sprain. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to August 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued the Veteran's 20 percent rating for his left ankle sprain. The Board observes a March 2007 rating decision denied service connection for degenerative joint disease of the right hip. Thereafter, in a February 2008 statement, the Veteran inquired as to the status of such claim. As such, in an April 2008 letter, the RO advised him that service connection for degenerative joint disease of the right hip had been denied in the March 2007 rating decision as there was no diagnosis or treatment shown in his service treatment records. In response to the April 2008 letter, the Veteran submitted a statement later the same month addressing only his left ankle disorder. No further communication regarding his right hip was received. Therefore, the Board finds that such issue is not properly before the Board. Additionally, in the Veteran's representative's August 2013 Written Brief Presentation, he addresses numerous alleged problems with the previous denial of service connection for left ankle sprain and a nervous condition. In this regard, the Board notes that such claims were initially denied in an April 1993 rating decision; however, service connection for left ankle sprain and schizophrenia, to include nervous condition, were granted in March 2007 and March 2011 rating decisions and assigned effective dates of August 10, 2006, and July 23, 2010, respectively. In the August 2013 Brief, the Veteran's representative addresses the Veteran's alleged failure to report for a September 1992 VA examination, did not obtain private treatment records, and did not obtain complete service treatment and personnel records prior to the issuance of the April 1993 rating decision. The representative concluded that, based on such errors, the Veteran was entitled to an effective date as of the original date of claim for service connection for his left ankle and schizophrenia, which the Board notes was August 19, 1992. However, the Board notes that the March 2007 rating decision determined that no revision based on clear and unmistakable error (CUE) was warranted in the April 1993 decision that denied service connection for left ankle sprain based on the Veteran's contention that failure to grant service connection in such decision was error as his left ankle condition was chronic in nature. The Veteran did not enter a notice of disagreement as to such determination. However, the representative has alleged an alternate theory of CUE in the August 2013 Brief with respect to the denial of service connection for left ankle sprain in the April 1993 rating decision, and has raised the issue of CUE in the April 1993 rating decision with respect to the denial of service connection for a nervous condition for the first time. These issues have not been adjudicated by the agency of original jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his left ankle sprain. Significantly, the Veteran was most recently afforded a VA examination in June 2008. This examination report shows plantar flexion from 0 to 25 degrees (pain from 22 to 25 degrees); dorsiflexion from 0 to 10 degrees (pain from 8 to 10 degrees); inversion from 0 to 15 degrees (pain from 12 to 15 degrees); and eversion from 0 to 11 degrees (pain from 10 to 11 degrees). Subsequently, in July 2008, the Veteran disputed the findings of the June 2008 VA examination. Specifically, the Veteran wrote that he had no pain-free motion in the left ankle, had to use a cane to ambulate, and that his ankle was effectively ankylosed. This was reiterated in his May 2009 substantive appeal. On remand, the Veteran should be afforded a new VA examination for his service-connected left ankle sprain so as to determine the current nature and severity of his left ankle disorder given the Veteran's recent allegation of pain on any motion making his left ankle effectively ankylosed. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Additionally, the most recent VA medical records in the claims file are dated in January 2007 from the Bay Pines, Florida, VA Healthcare System. Also, in the August 2013 Brief, the Veteran's representative referenced outstanding private treatment records that were not obtained in connection with the April 1993 rating decision. Thus, there appear to be outstanding medical records in this case that should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of all VA and non-VA medical care providers who have treated him for his left ankle sprain. After obtaining any necessary authorization forms from the Veteran, obtain all identified records, to include VA treatment records dated from January 2007 to the present from the Bay Pines, Florida, VA Healthcare System. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his left ankle sprain. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should describe the nature and severity of all manifestations of the Veteran's left ankle sprain, to include range of motion studies. He or she should note any range of motion loss which is specifically attributable to pain. In doing so, the examiner should consider the Veteran's allegations of no pain-free motion in the left ankle, the need to use a cane to ambulate, and that his ankle is effectively ankylosed. Note any additional functional loss with repetition. Discuss whether any functional loss is attributable to pain during flare-ups and then quantify in degrees the motion loss during such flare-ups. Note whether there is any less or more movement than is normal; weakened movement; excess fatigability; incoordination; and pain on movement (as well as swelling, deformity, and atrophy). The examiner should also discuss the impact of the Veteran's left ankle sprain on his employability. The rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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. 2013). _________________________________________________ A. JAEGER 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) (2013).